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U.S. Department of
Justice
Americans with Disabilities Act |
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As published in
the Title III regulations (28 CFR Part 36, revised
July 1, 1994) issued by the Department of Justice. The
ADA Standards for Accessible Design are in Appendix A
of the Title III Regulations
1991 ADA Standards for Accessible Design
(Below)
1991
ADA Standards for Accessible Design ( PDF)
(4.5 MB file) |
|
The following is the
Departmentīs title III ADA regulation. The Departmentīs title
III ADA regulation.
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PART 36 -- NONDISCRIMINATION ON THE BASIS OF DISABILITY BY
PUBLIC ACCOMMODATIONS AND IN COMMERCIAL FACILITIES
Subpart A -- General
Sec.
36.101 Purpose.
36.102 Application.
36.103 Relationship to other laws.
36.104 Definitions.
36.105 -- 36.199 [Reserved]
Subpart B -- General Requirements
36.201 General.
36.202 Activities.
36.203 Integrated settings.
36.204 Administrative methods.
36.205 Association.
36.206 Retaliation or coercion.
36.207 Places of public accommodations located in private
residences.
36.208 Direct threat.
36.209 Illegal use of drugs.
36.210 Smoking.
36.211 Maintenance of accessible features.
36.212 Insurance.
36.213 Relationship of subpart B to subparts C and D of this
part.
36.214 -- 36.299 [Reserved]
Subpart C -- Specific Requirements
36.301 Eligibility criteria.
36.302 Modifications in policies, practices, or procedures.
36.303 Auxiliary aids and services.
36.304 Removal of barriers.
36.305 Alternatives to barrier removal.
36.306 Personal devices and services.
36.307 Accessible or special goods.
36.308 Seating in assembly areas.
36.309 Examinations and courses.
36.310 Transportation provided by public accommodations.
36.311 -- 36.399 [Reserved]
Subpart D -- New Construction and Alterations
36.401 New construction.
36.402 Alterations.
36.403 Alterations: Path of travel.
36.404 Alterations: Elevator exemption.
36.405 Alterations: Historic preservation.
36.406 Standards for new construction and alterations.
36.407 Temporary suspension of certain detectable warning
requirements.
36.408 -- 36.499 [Reserved]
Subpart E -- Enforcement
36.501 Private suits.
36.502 Investigations and compliance reviews.
36.503 Suit by the Attorney General.
36.504 Relief.
36.505 Attorneys fees.
36.506 Alternative means of dispute resolution.
36.507 Effect of unavailability of technical assistance.
36.508 Effective date.
36.509 -- 36.599 [Reserved]
Subpart F -- Certification of State Laws or Local Building Codes
36.601 Definitions.
36.602 General rule.
36.603 Filing a request for certification.
36.604 Preliminary determination.
36.605 Procedure following preliminary determination of
equivalency.
36.606 Procedure following preliminary denial of certification.
36.607 Effect of certification.
36.608 Guidance concerning model codes.
Appendix A to Part 36 -- Standards for Accessible Design
Appendix B to Part 36 -- Preamble to Regulation on
Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities (Published July 26,
1991)
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b).
Source: Order No. 1513 - 91, 56 FR 35592, July 26, 1991, unless
otherwise noted.
Subpart A -- General
Sec.36.101 Purpose.
The purpose of this part is to implement title III of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12181), which
prohibits discrimination on the basis of disability by public
accommodations and requires places of public accommodation and
commercial facilities to be designed, constructed, and altered
in compliance with the accessibility standards established by
this part.
Sec.36.102 Application.
(a) General. This part applies to any --
(1) Public accommodation;
(2) Commercial facility; or
(3) Private entity that offers examinations or courses related
to applications, licensing, certification, or credentialing for
secondary or postsecondary education, professional, or trade
purposes.
(b) Public accommodations. (1) The requirements of this part
applicable to public accommodations are set forth insubparts B,
C, and D of this part.
(2) The requirements of subparts B and C of this part obligate a
public accommodation only with respect to the operations of a
place of public accommodation.
(3) The requirements of subpart D of this part obligate a public
accommodation only with respect to --
(i) A facility used as, or designed or constructed for use as, a
place of public accommodation; or
(ii) A facility used as, or designed and constructed for use as,
a commercial facility.
(c) Commercial facilities. The requirements of this part
applicable to commercial facilities are set forth in subpart D
of this part.
(d) Examinations and courses. The requirements of this part
applicable to private entities that offer examinations or
courses as specified in paragraph (a) of this section are set
forth in Sec.36.309.
(e) Exemptions and exclusions. This part does not apply to any
private club (except to the extent that the facilities of the
private club are made available to customers or patrons of a
place of public accommodation), or to any religious entity or
public entity.
Sec.36.103 Relationship to other laws.
(a) Rule of interpretation. Except as otherwise provided in this
part, this part shall not be construed to apply a lesser
standard than the standards applied under title V of the
Rehabilitation Act of 1973 (29 U.S.C. 791) or the regulations
issued by Federal agencies pursuant to that title.
(b) Section 504. This part does not affect theobligations of a
recipient of Federal financial assistance to comply with the
requirements of section 504 of the Rehabilitation Act of 1973
(29 U.S.C. 794) and regulations issued by Federal agencies
implementing section 504.
(c) Other laws. This part does not invalidate or limit the
remedies, rights, and procedures of any other Federal laws, or
State or local laws (including State common law) that provide
greater or equal protection for the rights of individuals with
disabilities or individuals associated with them.
Sec.36.104 Definitions.
For purposes of this part, the term --
Act means the Americans with Disabilities Act of 1990 (Pub. L.
101 - 336, 104 Stat. 327, 42 U.S.C. 12101 - 12213 and 47 U.S.C.
225 and 611).
Commerce means travel, trade, traffic, commerce, transportation,
or communication --
(1) Among the several States;
(2) Between any foreign country or any territory or possession
and any State; or
(3) Between points in the same State but through another State
or foreign country.
Commercial facilities means facilities --
(1) Whose operations will affect commerce;
(2) That are intended for nonresidential use by a private
entity; and
(3) That are not --
(i) Facilities that are covered or expressly exempted from
coverage under the Fair Housing Act of 1968, as amended (42
U.S.C. 3601 - 3631);
(ii) Aircraft; or
(iii) Railroad locomotives, railroad freight cars, railroad
cabooses, commuter or intercity passenger rail cars (including
coaches, dining cars, sleeping cars, lounge cars, and food
service cars), any other railroad cars described in section 242
of the Act or covered under title II of the Act, or railroad
rights-of-way. For purposes of this definition, "rail'' and
"railroad'' have the meaning given the term "railroad'' in
section 202(e) of the Federal Railroad Safety Act of 1970 (45
U.S.C. 431(e)).
Current illegal use of drugs means illegal use of drugs that
occurred recently enough to justify a reasonable belief that a
person's drug use is current or that continuing use is a real
and ongoing problem.
Disability means, with respect to an individual, a physical or
mental impairment that substantially limits one or more of the
major life activities of such individual; a record of such an
impairment; or being regarded as having such animpairment.
(1) The phrase physical or mental impairment means --
(i) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: neurological; musculoskeletal; special
sense organs; respiratory, including speech organs;
cardiovascular; reproductive; digestive; genitourinary; hemic
and lymphatic; skin; and endocrine;
(ii) Any mental or psychological disorder such as mental
retardation, organic brain syndrome, emotional or mental
illness, and specific learning disabilities;
(iii) The phrase physical or mental impairment includes, but is
not limited to, such contagious and noncontagious diseases and
conditions as orthopedic, visual, speech, and hearing
impairments, cerebral palsy, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes, mental
retardation, emotional illness, specific learning disabilities,
HIV disease (whether symptomatic or asymptomatic), tuberculosis,
drug addiction, and alcoholism;
(iv) The phrase physical or mental impairment does not include
homosexuality or bisexuality.
(2) The phrase major life activities means functions such as
caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.
(3) The phrase has a record of such an impairment means has a
history of, or has been misclassified as having, a mental or
physical impairment that substantially limits one or more major
life activities.
(4) The phrase is regarded as having an impairment means --
(i) Has a physical or mental impairment that does not
substantially limit major life activities but that is treated by
a private entity as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially
limits major life activities only as a result of the attitudes
of others toward such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of
this definition but is treated by a private entity as having
such an impairment.
(5) The term disability does not include --
(i) Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(ii) Compulsive gambling, kleptomania, or pyromania; or
(iii) Psychoactive substance use disorders resulting from
current illegal use of drugs.
Drug means a controlled substance, as defined in schedules I
through V of section 202 of the Controlled Substances Act (21
U.S.C. 812).
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.
Illegal use of drugs means the use of one or more drugs, the
possession or distribution of which is unlawful under the
Controlled Substances Act (21 U.S.C. 812). The term "illegal use
of drugs'' does not include the use of a drug taken under
supervision by a licensed health care professional, or other
uses authorized by the Controlled Substances Act or other
provisions of Federal law.
Individual with a disability means a person who has a
disability. The term "individual with a disability'' does not
include an individual who is currently engaging in the illegal
use of drugs, when the private entity acts on the basis of such
use.
Place of public accommodation means a facility, operated by a
private entity, whose operations affect commerce and fall within
at least one of the following categories --
(1) An inn, hotel, motel, or other place of lodging, except for
an establishment located within a building that contains not
more than five rooms for rent or hire and that is actually
occupied by the proprietor of the establishment as the residence
of the proprietor;
(2) A restaurant, bar, or other establishment serving food or
drink;
(3) A motion picture house, theater, concert hall, stadium, or
other place of exhibition or entertainment;
(4) An auditorium, convention center, lecture hall, or other
place of public gathering;
(5) A bakery, grocery store, clothing store, hardware store,
shopping center, or other sales or rental establishment;
(6) A laundromat, dry-cleaner, bank, barber shop, beauty shop,
travel service, shoe repair service, funeral parlor, gas
station, office of an accountant or lawyer, pharmacy, insurance
office, professional office of a health care provider, hospital,
or other service establishment;
(7) A terminal, depot, or other station used forspecified public
transportation;
(8) A museum, library, gallery, or other place of public display
or collection;
(9) A park, zoo, amusement park, or other place of recreation;
(10) A nursery, elementary, secondary, undergraduate, or
postgraduate private school, or other place of education;
(11) A day care center, senior citizen center, homeless shelter,
food bank, adoption agency, or other social service center
establishment; and
(12) A gymnasium, health spa, bowling alley, golf course, or
other place of exercise or recreation.
Private club means a private club or establishment exempted from
coverage under title II of the Civil Rights Act of 1964 (42
U.S.C. 2000a(e)).
Private entity means a person or entity other than a public
entity.
Public accommodation means a private entity that owns, leases
(or leases to), or operates a place of public accommodation.
Public entity means --
(1) Any State or local government;
(2) Any department, agency, special purpose district, or other
instrumentality of a State or States or local government; and
(3) The National Railroad Passenger Corporation, and any
commuter authority (as defined in section 103(8) of the Rail
Passenger Service Act). (45 U.S.C. 541)
Qualified interpreter means an interpreter who is able to
interpret effectively, accurately and impartially both
receptively and expressively, using any necessary specialized
vocabulary.
Readily achievable means easily accomplishable and able to be
carried out without much difficulty or expense. In determining
whether an action is readily achievable factors to be considered
include --
(1) The nature and cost of the action needed under this part;
(2) The overall financial resources of the site or sites
involved in the action; the number of persons employed at the
site; the effect on expenses and resources; legitimate safety
requirements that are necessary for safe operation, including
crime prevention measures; or the impact otherwise of the action
upon the operation of the site;
(3) The geographic separateness, and the administrative or
fiscal relationship of the site or sites in question to any
parent corporation or entity;
(4) If applicable, the overall financial resources of any parent
corporation or entity; the overall size of the parent
corporation or entity with respect to the number of its
employees; the number, type, and location of its facilities; and
(5) If applicable, the type of operation or operations of any
parent corporation or entity, including the composition,
structure, and functions of the workforce of the parent
corporation or entity.
Religious entity means a religious organization, including a
place of worship.
Service animal means any guide dog, signal dog, or other animal
individually trained to do work or perform tasks for the benefit
of an individual with a disability, including, but not limited
to, guiding individuals with impaired vision, alerting
individuals with impaired hearing to intruders or sounds,
providing minimal protection or rescue work, pulling a wheelchair,
or fetching dropped items.
Specified public transportation means transportation by bus,
rail, or any other conveyance (other than by aircraft) that
provides the general public with general or special service
(including charter service) on a regular and continuing basis.
State means each of the several States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa,
the Virgin Islands, the Trust Territory of the Pacific Islands,
and the Commonwealth of the Northern Mariana Islands.
Undue burden means significant difficulty or expense. In
determining whether an action would result in an undue burden,
factors to be considered include --
(1) The nature and cost of the action needed under this part;
(2) The overall financial resources of the site or sites
involved in the action; the number of persons employed at the
site; the effect on expenses and resources; legitimate safety
requirements that are necessary for safe operation, including
crime prevention measures; or the impact otherwise of the action
upon the operation of the site;
(3) The geographic separateness, and the administrative or
fiscal relationship of the site or sites in question to any
parent corporation or entity;
(4) If applicable, the overall financial resources of any parent
corporation or entity; the overall size of the parent
corporation or entity with respect to the number of its
employees; the number, type, and location of its facilities; and
(5) If applicable, the type of operation or operations of any
parent corporation or entity, including the composition,
structure, and functions of the workforce of the parent
corporation or entity.
Sec..36.105 -- 36.199 [Reserved]
Subpart B -- General Requirements
Sec.36.201 General.
(a) Prohibition of discrimination. 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 private entity who owns, leases (or leases
to), or operates a place of public accommodation.
(b) Landlord and tenant responsibilities. Both the landlord who
owns the building that houses a place of public accommodation
and the tenant who owns or operates the place of public
accommodation are public accommodations subject to the
requirements of this part. As between the parties, allocation of
responsibility for complying with the obligations of this part
may be determined by lease or other contract.
Sec.36.202 Activities.
(a) Denial of participation. A public accommodation shall not
subject an individual or class of individuals on the basis of a
disability or disabilities of such individual or class,
directly, or through contractual, licensing, or other
arrangements, to a denial of the opportunity of the individual
or class to participate in or benefit from the goods, services,
facilities, privileges, advantages, or accommodations of a place
of public accommodation.
(b) Participation in unequal benefit. A public accommodation
shall not afford an individual or class of individuals, on the
basis of a disability or disabilities of such individual or
class, directly, or through contractual, licensing, or other
arrangements, with the opportunity to participate in or benefit
from a good, service, facility, privilege, advantage, or
accommodation that is not equal to that afforded to other
individuals.
(c) Separate benefit. A public accommodation shall not provide
an individual or class of individuals, on the basis of a
disability or disabilities of such individual or class,
directly, or through contractual, licensing, or other
arrangements with a good, service, facility, privilege,
advantage, or accommodation that is different or separate from
that provided to other individuals, unless such action is
necessary to provide the individual or class of individuals with
a good, service, facility, privilege, advantage, or
accommodation, or other opportunity that is as effective as that
provided to others.
(d) Individual or class of individuals. For purposes of
paragraphs (a) through (c) of this section, the term "individual
or class of individuals'' refers to the clients or customers of
the public accommodation that enters into the contractual,
licensing, or other arrangement.
Sec.36.203 Integrated settings.
(a) General. A public accommodation shall afford goods,
services, facilities, privileges, advantages, and accommodations
to an individual with a disability in the most integrated
setting appropriate to the needs of the individual.
(b) Opportunity to participate. Notwithstanding the existence of
separate or different programs or activities provided in
accordance with this subpart, a public accommodation shall not
deny an individual with a disability an opportunity to
participate in such programs or activities that are not separate
or different.
(c) Accommodations and services. (1) Nothing in this part shall
be construed to require an individual with a disability to
accept an accommodation, aid, service, opportunity, or benefit
available under this part that such individual chooses not to
accept.
(2) Nothing in the Act or this part authorizes there
presentative or guardian of an individual with a disability to
decline food, water, medical treatment, or medical services for
that individual.
Sec.36.204 Administrative methods.
A public accommodation shall not, directly or through
contractual or other arrangements, utilize standards or criteria
or methods of administration that have the effect of
discriminating on the basis of disability, or that perpetuate
the discrimination of others who are subject to common
administrative control.
Sec.36.205 Association.
A public accommodation shall not exclude or otherwise deny equal
goods, services, facilities, privileges, advantages,
accommodations, or other opportunities to an individual or
entity because of the known disability of an individual with
whom the individual or entity is known to have a relationship or
association.
Sec.36.206 Retaliation or coercion.
(a) No private or public entity shall discriminate against any
individual because that individual has opposed any act or
practice made unlawful by this part, or because that individual
made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under the Act
or this part.
(b) No private or public entity shall coerce, intimidate,
threaten, or interfere with any individual in the exercise or
enjoyment of, or on account of his or her having exercised or
enjoyed, or on account of his or her having aided or encouraged
any other individual in the exercise or enjoyment of, any right
granted or protected by the Act or this part.
(c) Illustrations of conduct prohibited by this section include,
but are not limited to:
(1) Coercing an individual to deny or limit the benefits,
services, or advantages to which he or she is entitled under the
Act or this part;
(2) Threatening, intimidating, or interfering with an individual
with a disability who is seeking to obtain or use the goods,
services, facilities, privileges, advantages, or accommodations
of a public accommodation;
(3) Intimidating or threatening any person because that person
is assisting or encouraging an individual or group entitled to
claim the rights granted or protected by the Act or this part to
exercise those rights; or
(4) Retaliating against any person because that person has
participated in any investigation or action to enforce the Act
or this part.
Sec.36.207 Places of public accommodation located in private
residences.
(a) When a place of public accommodation is located in a private
residence, the portion of the residence used exclusively as a
residence is not covered by this part, but that portion used
exclusively in the operation of the place of public
accommodation or that portion used both for the place of public
accommodation and for residential purposes is covered by this
part.
(b) The portion of the residence covered under paragraph (a) of
this section extends to those elements used to enter the place
of public accommodation, including the homeowner's front
sidewalk, if any, the door or entryway, and hallways; and those
portions of the residence, interior or exterior, available to or
used by customers or clients, including restrooms.
Sec.36.208 Direct threat.
(a) This part does not require a public accommodation to permit
an individual to participate in or benefit from the goods,
services, facilities, privileges, advantages and accommodations
of that public accommodation when that individual poses a direct
threat to the health or safety of others.
(b) Direct threat means a significant risk to the health or
safety of others that cannot be eliminated by a modification of
policies, practices, or procedures, or by the provision of
auxiliary aids or services.
(c) In determining whether an individual poses a direct threat
to the health or safety of others, a public accommodation must
make an individualized assessment, based on reasonable judgment
that relies on current medical knowledge or on the best
available objective evidence, to ascertain: the nature,
duration, and severity of the risk; the probability that the
potential injury will actually occur; and whether reasonable
modifications of policies, practices, or procedures will
mitigate the risk.
Sec.36.209 Illegal use of drugs.
(a) General. (1) Except as provided in paragraph (b) of this
section, this part does not prohibit discrimination against an
individual based on that individual's current illegal use of
drugs.
(2) A public accommodation shall not discriminate on the basis
of illegal use of drugs against an individual who is not
engaging in current illegal use of drugs and who --
(i) Has successfully completed a supervised drug rehabilitation
program or has otherwise been rehabilitated successfully;
(ii) Is participating in a supervised rehabilitation program; or
(iii) Is erroneously regarded as engaging in such use.
(b) Health and drug rehabilitation services. (1) A public
accommodation shall not deny health services, or services
provided in connection with drug rehabilitation, to an
individual on the basis of that individual's current illegal use
of drugs, if the individual is otherwise entitled to such
services.
(2) A drug rehabilitation or treatment program may deny
participation to individuals who engage in illegal use of drugs
while they are in the program.
(c) Drug testing. (1) This part does not prohibit a public
accommodation from adopting or administering reasonable policies
or procedures, including but not limited to drug testing,
designed to ensure that an individual who formerly engaged in
the illegal use of drugs is not now engaging incurrent illegal
use of drugs.
(2) Nothing in this paragraph (c) shall be construed to
encourage, prohibit, restrict, or authorize the conducting of
testing for the illegal use of drugs.
Sec.36.210 Smoking.
This part does not preclude the prohibition of, or the
imposition of restrictions on, smoking in places of public
accommodation.
Sec.36.211 Maintenance of accessible features.
(a) A public accommodation shall maintain in operable working
condition those features of facilities and equipment that are
required to be readily accessible to and usable by persons with
disabilities by the Act or this part.
(b) This section does not prohibit isolated or temporary
interruptions in service or access due to maintenance or
repairs.
Sec.36.212 Insurance.
(a) This part shall not be construed to prohibit or restrict --
(1) An insurer, hospital or medical service company, health
maintenance organization, or any agent, or entity that
administers benefit plans, or similar organizations from
underwriting risks, classifying risks, or administering such
risks that are based on or not inconsistent with State law; or
(2) A person or organization covered by this part from
establishing, sponsoring, observing or administering the terms
of a bona fide benefit plan that are based on underwriting
risks, classifying risks, or administering such risks that are
based on or not inconsistent with State law; or
(3) A person or organization covered by this part from
establishing, sponsoring, observing or administering the terms
of a bona fide benefit plan that is not subject to State laws
that regulate insurance.
(b) Paragraphs (a) (1), (2), and (3) of this section shall not
be used as a subterfuge to evade the purposes of the Act or this
part.
(c) A public accommodation shall not refuse to serve an
individual with a disability because its insurance company
conditions coverage or rates on the absence of individuals with
disabilities.
Sec.36.213 Relationship of subpart B to subparts C and D of this
part.
Subpart B of this part sets forth the general principles of
nondiscrimination applicable to all entities subject to this
part. Subparts C and D of this part provide guidance on the
application of the statute to specific situations. The specific
provisions, including the limitations on those provisions,
control over the general provisions in circumstances where both
specific and general provisions apply.
Sec..36.214 -- 36.299 [Reserved]
Subpart C -- Specific Requirements
Sec.36.301 Eligibility criteria.
(a) General. A public accommodation shall not impose or apply
eligibility criteria that screen out or tend to screen out an
individual with a disability or any class of individuals with
disabilities from fully and equally enjoying any goods,
services, facilities, privileges, advantages, or accommodations,
unless such criteria can be shown to be necessary for the
provision of the goods, services, facilities, privileges,
advantages, or accommodations being offered.
(b) Safety. A public accommodation may impose legitimate safety
requirements that are necessary for safe operation. Safety
requirements must be based on actual risks and not on mere
speculation, stereotypes, or generalizations about individuals
with disabilities.
(c) Charges. A public accommodation may not impose a surcharge
on a particular individual with a disability or any group of
individuals with disabilities to cover the costs of measures,
such as the provision of auxiliary aids, barrier removal,
alternatives to barrier removal, and reasonable modifications in
policies, practices, or procedures, that are required to provide
that individual or group with the nondiscriminatory treatment
required by the Act or this part.
Sec.36.302 Modifications in policies, practices, or procedures.
(a) General. A public accommodation shall make reasonable
modifications in policies, practices, or procedures, when the
modifications are necessary to afford goods, services,facilities,
privileges, advantages, or accommodations to individuals with
disabilities, unless the public accommodation can demonstrate
that making the modifications would fundamentally alter the
nature of the goods, services, facilities, privileges,
advantages, or accommodations.
(b) Specialties -- (1) General. A public accommodation may refer
an individual with a disability to another public accommodation,
if that individual is seeking, or requires, treatment or
services outside of the referring public accommodation's area of
specialization, and if, in the normal course of its operations,
the referring public accommodation would make a similar referral
for an individual without a disability who seeks or requires the
same treatment or services.
(2) Illustration -- medical specialties. A health care provider
may refer an individual with a disability to another provider,
if that individual is seeking, or requires, treatment or
services outside of the referring provider's area of
specialization, and if the referring provider would make a
similar referral for an individual without a disability who
seeks or requires the same treatment or services. A physician
who specializes in treating only a particular condition cannot
refuse to treat an individual with a disability for that
condition, but is not required to treat the individual for a
different condition.
(c) Service animals -- (1) General. Generally, a public
accommodation shall modify policies, practices, or procedures to
permit the use of a service animal by an individual with a
disability.
(2) Care or supervision of service animals. Nothing in this part
requires a public accommodation to supervise or care for a
service animal.
(d) Check-out aisles. A store with check-out aisles shall ensure
that an adequate number of accessible check-out aisles are kept
open during store hours, or shall otherwise modify its policies
and practices, in order to ensure that an equivalent level of
convenient service is provided to individuals with disabilities
as is provided to others. If only one check-out aisle is
accessible, and it is generally used for express service, one
way of providing equivalent service is to allow persons with
mobility impairments to make all their purchases at that aisle.
Sec.36.303 Auxiliary aids and services.
(a) General. A public accommodation shall take those steps that
may be necessary to ensure that no individual with a disability
is excluded, denied services, segregated or otherwise treated
differently than other individuals because of the absence of
auxiliary aids and services, unless the public accommodation can
demonstrate that taking those steps would fundamentally alter
the nature of the goods, services, facilities, privileges,
advantages, or accommodations being offered or would result in
an undue burden, i.e., significant difficulty or expense.
(b) Examples. The term "auxiliary aids and services'' includes
--
(1) Qualified interpreters, notetakers, computer-aided
transcription services, written materials, telephone handset
amplifiers, assistive listening devices, assistive listening
systems, telephones compatible with hearing aids, closed caption
decoders, open and closed captioning, telecommunications devices
for deaf persons (TDD's), videotext displays, or other effective
methods of making aurally delivered materials available to
individuals with hearing impairments;
(2) Qualified readers, taped texts, audio recordings, Brailled
materials, large print materials, or other effective methods of
making visually delivered materials available to individuals
with visual impairments;
(3) Acquisition or modification of equipment or devices; and
(4) Other similar services and actions.
(c) Effective communication. A public accommodation shall
furnish appropriate auxiliary aids and services where necessary
to ensure effective communication with individuals with
disabilities.
(d) Telecommunication devices for the deaf (TDD's). (1) A public
accommodation that offers a customer, client, patient, or
participant the opportunity to make outgoing telephone calls on
more than an incidental convenience basis shall make available,
upon request, a TDD for the use of an individual who has
impaired hearing or a communication disorder.
(2) This part does not require a public accommodation to use a
TDD for receiving or making telephone calls incident to its
operations.
(e) Closed caption decoders. Places of lodging that provide
televisions in five or more guest rooms and hospitals that
provide televisions for patient use shall provide, upon request,
a means for decoding captions for use by an individual with
impaired hearing.
(f) Alternatives. If provision of a particular auxiliary aid or
service by a public accommodation would result in a fundamental
alteration in the nature of the goods, services, facilities,
privileges, advantages, or accommodations being offered or in an
undue burden, i.e., significant difficulty or expense, the
public accommodation shall provide an alternative auxiliary aid
or service, if one exists, that would not result in an
alteration or such burden but would nevertheless ensure that, to
the maximum extent possible, individuals with disabilities
receive the goods, services, facilities, privileges, advantages,
or accommodations offered by the public accommodation.
Sec.36.304 Removal of barriers.
(a) General. A public accommodation shall remove architectural
barriers in existing facilities, including communication
barriers that are structural in nature, where such removal is
readily achievable, i.e., easily accomplishable and able to be
carried out without much difficulty or expense.
(b) Examples. Examples of steps to remove barriers include, but
are not limited to, the following actions --
(1) Installing ramps;
(2) Making curb cuts in sidewalks and entrances;
(3) Repositioning shelves;
(4) Rearranging tables, chairs, vending machines, display racks,
and other furniture;
(5) Repositioning telephones;
(6) Adding raised markings on elevator control buttons;
(7) Installing flashing alarm lights;
(8) Widening doors;
(9) Installing offset hinges to widen doorways;
(10) Eliminating a turnstile or providing an alternative
accessible path;
(11) Installing accessible door hardware;
(12) Installing grab bars in toilet stalls;
(13) Rearranging toilet partitions to increase maneuvering
space;
(14) Insulating lavatory pipes under sinks to prevent burns;
(15) Installing a raised toilet seat;
(16) Installing a full-length bathroom mirror;
(17) Repositioning the paper towel dispenser in a bathroom;
(18) Creating designated accessible parking spaces;
(19) Installing an accessible paper cup dispenser at an existing
inaccessible water fountain;
(20) Removing high pile, low density carpeting; or
(21) Installing vehicle hand controls.
(c) Priorities. A public accommodation is urged to take measures
to comply with the barrier removal requirements of this section
in accordance with the following order of priorities.
(1) First, a public accommodation should take measures to
provide access to a place of public accommodation from public
sidewalks, parking, or public transportation. These measures
include, for example, installing an entrance ramp, widening
entrances, and providing accessible parking spaces.
(2) Second, a public accommodation should take measures to
provide access to those areas of a place of public accommodation
where goods and services are made available to the public. These
measures include, for example, adjusting the layout of display
racks, rearranging tables, providing Brailled and raised
character signage, widening doors, providing visual alarms, and
installing ramps.
(3) Third, a public accommodation should take measures to
provide access to restroom facilities. These measures include,
for example, removal of obstructing furniture or vending
machines, widening of doors, installation of ramps, providing
accessible signage, widening of toilet stalls, and installation
of grab bars.
(4) Fourth, a public accommodation should take any other
measures necessary to provide access to the goods, services,
facilities, privileges, advantages, or accommodations of a place
of public accommodation.
(d) Relationship to alterations requirements of subpart D of
this part. (1) Except as provided in paragraph (d)(2) of this
section, measures taken to comply with the barrier removal
requirements of this section shall comply with the applicable
requirements for alterations in Sec.36.402 and Sec..36.404
-36.406 of this part for the element being altered. The path of
travel requirements of Sec.36.403 shall not apply to measures
taken solely to comply with the barrier removal requirements of
this section.
(2) If, as a result of compliance with the alterations
requirements specified in paragraph (d)(1) of this section, the
measures required to remove a barrier would not be readily
achievable, a public accommodation may take other readily
achievable measures to remove the barrier that do not fully
comply with the specified requirements. Such measures include,
for example, providing a ramp with a steeper slope or widening a
doorway to a narrower width than that mandated by the
alterations requirements. No measure shall be taken, however,
that poses a significant risk to the health or safety of
individuals with disabilities or others.
(e) Portable ramps. Portable ramps should be used to comply with
this section only when installation of a permanent ramp is not
readily achievable. In order to avoid any significant risk to
the health or safety of individuals with disabilities or others
in using portable ramps, due consideration shall be given to
safety features such as nonslip surfaces, railings, anchoring,
and strength of materials.
(f) Selling or serving space. The rearrangement of temporary or
movable structures, such as furniture, equipment, and display
racks is not readily achievable to the extent that it results in
a significant loss of selling or serving space.
(g) Limitation on barrier removal obligations. (1) The
requirements for barrier removal under Sec.36.304 shall not be
interpreted to exceed the standards for alterations in subpart D
of this part.
(2) To the extent that relevant standards for alterations are
not provided in subpart D of this part, then the requirements of
Sec.36.304 shall not be interpreted to exceed the standards for
new construction in subpart D of this part.
(3) This section does not apply to rolling stock and other
conveyances to the extent that Sec.36.310 applies to rolling
stock and other conveyances.
Sec.36.305 Alternatives to barrier removal.
(a) General. Where a public accommodation can demonstrate that
barrier removal is not readily achievable, the public
accommodation shall not fail to make its goods, services,
facilities, privileges, advantages, or accommodations available
through alternative methods, if those methods are readily
achievable.
(b) Examples. Examples of alternatives to barrier removal
include, but are not limited to, the following actions --
(1) Providing curb service or home delivery;
(2) Retrieving merchandise from inaccessible shelves or racks;
(3) Relocating activities to accessible locations;
(c) Multiscreen cinemas. If it is not readily achievable to
remove barriers to provide access by persons with mobility
impairments to all of the theaters of a multiscreen cinema, the
cinema shall establish a film rotation schedule that provides
reasonable access for individuals who use wheelchairs to all
films. Reasonable notice shall be provided to the public as to
the location and time of accessible showings.
Sec.36.306 Personal devices and services.
This part does not require a public accommodation to provide its
customers, clients, or participants with personal devices, such
as wheelchairs; individually prescribed devices, such as
prescription eyeglasses or hearing aids; or services of a
personal nature including assistance in eating, toileting, or
dressing.
Sec.36.307 Accessible or special goods.
(a) This part does not require a public accommodation to alter
its inventory to include accessible or special goods that are
designed for, or facilitate use by, individuals with
disabilities.
(b) A public accommodation shall order accessible or special
goods at the request of an individual with disabilities, if, in
the normal course of its operation, it makes special orders on
request for unstocked goods, and if the accessible or special
goods can be obtained from a supplier with whom the public
accommodation customarily does business.
(c) Examples of accessible or special goods include items such
as Brailled versions of books, books on audio cassettes,
closed-captioned video tapes, special sizes or lines of
clothing, and special foods to meet particular dietary needs.
Sec.36.308 Seating in assembly areas.
(a) Existing facilities. (1) To the extent that it is readily
achievable, a public accommodation in assembly areas shall --
(i) Provide a reasonable number of wheelchair seating spaces and
seats with removable aisle-side arm rests; and
(ii) Locate the wheelchair seating spaces so that they --
(A) Are dispersed throughout the seating area;
(B) Provide lines of sight and choice of admission prices
comparable to those for members of the general public;
(C) Adjoin an accessible route that also serves as a means of
egress in case of emergency; and
(D) Permit individuals who use wheelchairs to sit with family
members or other companions.
(2) If removal of seats is not readily achievable, a public
accommodation shall provide, to the extent that it is readily
achievable to do so, a portable chair or other means to permit a
family member or other companion to sit with an individual who
uses a wheelchair.
(3) The requirements of paragraph (a) of this section shall not
be interpreted to exceed the standards for alterations in
subpart D of this part.
(b) New construction and alterations. The provision and location
of wheelchair seating spaces in newly constructed or altered
assembly areas shall be governed by the standards for new
construction and alterations in subpart D of this part.
Sec.36.309 Examinations and courses.
(a) General. Any private entity that offers examinations or
courses related to applications, licensing, certification, or
credentialing for secondary or postsecondary education,
professional, or trade purposes shall offer such examinations or
courses in a place and manner accessible to persons with
disabilities or offer alternative accessible arrangements for
such individuals.
(b) Examinations. (1) Any private entity offering an examination
covered by this section must assure that --
(i) The examination is selected and administered so as to best
ensure that, when the examination is administered to an
individual with a disability that impairs sensory, manual, or
speaking skills, the examination results accurately reflect the
individual's aptitude or achievement level or whatever other
factor the examination purports to measure, rather than
reflecting the individual's impaired sensory, manual, or
speaking skills (except where those skills are the factors that
the examination purports to measure);
(ii) An examination that is designed for individuals with
impaired sensory, manual, or speaking skills is offered at
equally convenient locations, as often, and in as timely a
manner as are other examinations; and
(iii) The examination is administered in facilities that are
accessible to individuals with disabilities or alternative
accessible arrangements are made.
(2) Required modifications to an examination may include changes
in the length of time permitted for completion of the
examination and adaptation of the manner in which the
examination is given.
(3) A private entity offering an examination covered by this
section shall provide appropriate auxiliary aids for persons
with impaired sensory, manual, or speaking skills, unless that
private entity can demonstrate that offering a particular
auxiliary aid would fundamentally alter the measurement of the
skills or knowledge the examination is intended to test or would
result in an undue burden. Auxiliary aids and services required
by this section may include taped examinations, interpreters or
other effective methods of making orally delivered materials
available to individuals with hearing impairments, Brailled or
large print examinations and answer sheets or qualified readers
for individuals with visual impairments or learning
disabilities, transcribers for individuals with manual
impairments, and other similar services and actions.
(4) Alternative accessible arrangements may include, for
example, provision of an examination at an individual's home
with a proctor if accessible facilities or equipment are
unavailable. Alternative arrangements must provide comparable
conditions to those provided for nondisabled individuals.
(c) Courses. (1) Any private entity that offers a course covered
by this section must make such modifications to that course as
are necessary to ensure that the place and manner in which the
course is given are accessible to individuals with disabilities.
(2) Required modifications may include changes in the length of
time permitted for the completion of the course, substitution of
specific requirements, or adaptation of the manner in which the
course is conducted or course materials are distributed.
(3) A private entity that offers a course covered by this
section shall provide appropriate auxiliary aids and services
for persons with impaired sensory, manual, or speaking skills,
unless the private entity can demonstrate that offering a
particular auxiliary aid or service would fundamentally alter
the course or would result in an undue burden. Auxiliary aids
and services required by this section may include taped texts,
interpreters or other effective methods of making orally
delivered materials available to individuals with hearing
impairments, Brailled or large print texts or qualified readers
for individuals with visual impairments and learning
disabilities, classroom equipment adapted for use by individuals
with manual impairments, and other similar services and actions.
(4) Courses must be administered in facilities that are
accessible to individuals with disabilities or alternative
accessible arrangements must be made.
(5) Alternative accessible arrangements may include, for
example, provision of the course through videotape, cassettes,
or prepared notes. Alternative arrangements must provide
comparable conditions to those provided for nondisabled
individuals.
Sec.36.310 Transportation provided by public accommodations.
(a) General. (1) A public accommodation that provides
transportation services, but that is not primarily engaged in
the business of transporting people, is subject to the general
and specific provisions in subparts B, C, and D of this part for
its transportation operations, except as provided in this
section.
(2) Examples. Transportation services subject to this section
include, but are not limited to, shuttle services operated
between transportation terminals and places of public
accommodation, customer shuttle bus services operated by private
companies and shopping centers, student transportation systems,
and transportation provided within recreational facilities such
as stadiums, zoos, amusement parks, and ski resorts.
(b) Barrier removal. A public accommodation subject to this
section shall remove transportation barriers in existing
vehicles and rail passenger cars used for transporting
individuals (not including barriers that can only be removed
through the retrofitting of vehicles or rail passenger cars by
the installation of a hydraulic or other lift) where such
removal is readily achievable.
(c) Requirements for vehicles and systems. A public
accommodation subject to this section shall comply with the
requirements pertaining to vehicles and transportation systems
in the regulations issued by the Secretary of Transportation
pursuant to section 306 of the Act.
Sec..36.311 -- 36.399 [Reserved]
Subpart D -- New Construction and Alterations
Sec.36.401 New construction.
(a) General. (1) Except as provided in paragraphs (b) and (c) of
this section, discrimination for purposes of this part 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.
(2) For purposes of this section, a facility is designed and
constructed for first occupancy after January 26, 1993, only --
(i) If the last application for a building permit or permit
extension for the facility is certified to be complete, by a
State, County, or local government after January 26, 1992 (or,
in those jurisdictions where the government does not certify
completion of applications, if the last application for a
building permit or permit extension for the facility is received
by the State, County, or local government after January 26,
1992); and
(ii) If the first certificate of occupancy for the facility is
issued after January 26, 1993.
(b) Commercial facilities located in private residences. (1)
When a commercial facility is located in a private residence,
the portion of the residence used exclusively as a residence is
not covered by this subpart, but that portion used exclusively
in the operation of the commercial facility or that portion used
both for the commercial facility and for residential purposes is
covered by the new construction and alterations requirements of
this subpart.
(2) The portion of the residence covered under paragraph (b)(1)
of this section extends to those elements used to enter the
commercial facility, including the homeowner's front sidewalk,
if any, the door or entryway, and hallways; and those portions
of the residence, interior or exterior, available to or used by
employees or visitors of the commercial facility, including
restrooms.
(c) Exception for structural impracticability. (1) Full
compliance with the requirements of this section is not required
where an entity can demonstrate that it is structurally
impracticable to meet the requirements. Full compliance will be
considered structurally impracticable only in those rare
circumstances when the unique characteristics of terrain prevent
the incorporation of accessibility features.
(2) If full compliance with this section would be structurally
impracticable, compliance with this section is required to the
extent that it is not structurally impracticable. In that case,
any portion of the facility that can be made accessible shall be
made accessible to the extent that it is not structurally
impracticable.
(3) If providing accessibility in conformance with this section
to individuals with certain disabilities (e.g., those who use
wheelchairs) would be structurally impracticable, accessibility
shall nonetheless be ensured to persons with other types of
disabilities (e.g., those who use crutches or who have sight,
hearing, or mental impairments) in accordance with this section.
(d) Elevator exemption. (1) For purposes of this paragraph (d)
--
(i) Professional office of a health care provider means a
location where a person or entity regulated by a State to
provide professional services related to the physical or mental
health of an individual makes such services available to the
public. The facility housing the "professional office of a
health care provider'' only includes floor levels housing at
least one health care provider, or any floor level designed or
intended for use by at least one health care provider.
(ii) Shopping center or shopping mall means --
(A) A building housing five or more sales or rental
establishments; or
(B) A series of buildings on a common site, either under common
ownership or common control or developed either as one project
or as a series of related projects, housing five or more sales
or rental establishments. For purposes of this section, places
of public accommodation of the types listed in paragraph (5) of
the definition of "place of public accommodation'' in section
Sec.36.104 are considered sales or rental establishments. The
facility housing a "shopping center or shopping mall'' only
includes floor levels housing at least one sales or rental
establishment, or any floor level designed or intended for use
by at least one sales or rental establishment.
(2) This section does not require the installation of an
elevator in a facility that is less than three stories or has
less than 3000 square feet per story, except with respect to any
facility that houses one or more of the following:
(i) A shopping center or shopping mall, or a professional office
of a health care provider.
(ii) A terminal, depot, or other station used for specified
public transportation, or an airport passenger terminal. In such
a facility, any area housing passenger services, including
boarding and debarking, loading and unloading, baggage claim,
dining facilities, and other common areas open to the public,
must be on an accessible route from an accessible entrance.
(3) The elevator exemption set forth in this paragraph (d) does
not obviate or limit, in any way the obligation to comply with
the other accessibility requirements established in paragraph
(a) of this section. For example, in a facility that houses a
shopping center or shopping mall, or a professional office of a
health care provider, the floors that are above or below an
accessible ground floor and that do not house sales or rental
establishments or a professional office of a health care
provider, must meet the requirements of this section but for the
elevator.
Sec.36.402 Alterations.
(a) General. (1) 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.
(2) An alteration is deemed to be undertaken after January 26,
1992, if the physical alteration of the property begins after
that date.
(b) Alteration. For the purposes of this part, an alteration is
a change to a place of public accommodation or a commercial
facility that affects or could affect the usability of the
building or facility or any part thereof.
(1) Alterations include, but are not limited to, remodeling,
renovation, rehabilitation, reconstruction, historic
restoration, changes or rearrangement in structural parts or
elements, and changes or rearrangement in the plan configuration
of walls and full-height partitions. Normal maintenance,
reroofing, painting or wallpapering, asbestos removal, or
changes to mechanical and electrical systems are not alterations
unless they affect the usability of the building or facility.
(2) If existing elements, spaces, or common areas are altered,
then each such altered element, space, or area shall comply with
the applicable provisions of appendix A to this part.
(c) To the maximum extent feasible. The phrase "to the maximum
extent feasible,'' as used in this section, applies to the
occasional case where the nature of an existing facility makes
it virtually impossible to comply fully with applicable
accessibility standards through a planned alteration. In these
circumstances, the alteration shall provide the maximum physical
accessibility feasible. Any altered features of the facility
that can be made accessible shall be made accessible. If
providing accessibility in conformance with this section to
individuals with certain disabilities (e.g., those who use
wheelchairs) would not be feasible, the facility shall be made
accessible to persons with other types of disabilities (e.g.,
those who use crutches, those who have impaired vision or
hearing, or those who have other impairments).
Sec.36.403 Alterations: Path of travel.
(a) General. An alteration that affects or could affect the
usability of or access to an area of a facility that contains a
primary function shall be made so as to ensure that, to the
maximum extent feasible, the path of travel to the altered area
and the restrooms, telephones, and drinking fountains serving
the altered area, are readily accessible to and usable by
individuals with disabilities, including individuals who use
wheelchairs, unless the cost and scope of such alterations is
disproportionate to the cost of the overall alteration.
(b) Primary function. A "primary function'' is a major activity
for which the facility is intended. Areas that contain a primary
function include, but are not limited to, the customer services
lobby of a bank, the dining area of a cafeteria, the meeting
rooms in a conference center, as well as offices and other work
areas in which the activities of the public accommodation or
other private entity using the facility are carried out.
Mechanical rooms, boiler rooms, supply storage rooms, employee
lounges or locker rooms, janitorial closets, entrances,
corridors, and restrooms are not areas containing a primary
function.
(c) Alterations to an area containing a primary function. (1)
Alterations that affect the usability of or access to an area
containing a primary function include, but are not limited to --
(i) Remodeling merchandise display areas or employee work areas
in a department store;
(ii) Replacing an inaccessible floor surface in the customer
service or employee work areas of a bank;
(iii) Redesigning the assembly line area of a factory; or
(iv) Installing a computer center in an accounting firm.
(2) For the purposes of this section, alterations to windows,
hardware, controls, electrical outlets, and signage shall not be
deemed to be alterations that affect the usability of or access
to an area containing a primary function.
(d) Landlord/tenant: If a tenant is making alterations as
defined in Sec.36.402 that would trigger the requirements of
this section, those alterations by the tenant in areas that only
the tenant occupies do not trigger a path of travel obligation
upon the landlord with respect to areas of the facility under
the landlord's authority, if those areas are not otherwise being
altered.
(e) Path of travel. (1) A "path of travel'' includes a
continuous, unobstructed way of pedestrian passage by means of
which the altered area may be approached, entered, and exited,
and which connects the altered area with an exterior approach
(including sidewalks, streets, and parking areas), an entrance
to the facility, and other parts of the facility.
(2) An accessible path of travel may consist of walks and
sidewalks, curb ramps and other interior or exterior pedestrian
ramps; clear floor paths through lobbies, corridors, rooms, and
other improved areas; parking access aisles; elevators and
lifts; or a combination of these elements.
(3) For the purposes of this part, the term "path of travel''
also includes the restrooms, telephones, and drinking fountains
serving the altered area.
(f) Disproportionality. (1) Alterations made to provide an
accessible path of travel to the altered area will be deemed
disproportionate to the overall alteration when the cost exceeds
20% of the cost of the alteration to the primary function area.
(2) Costs that may be counted as expenditures required to
provide an accessible path of travel may include:
(i) Costs associated with providing an accessible entrance and
an accessible route to the altered area, for example, the cost
of widening doorways or installing ramps;
(ii) Costs associated with making restrooms accessible, such as
installing grab bars, enlarging toilet stalls, insulating pipes,
or installing accessible faucet controls;
(iii) Costs associated with providing accessible telephones,
such as relocating the telephone to an accessible height,
installing amplification devices, or installing a
telecommunications device for deaf persons (TDD);
(iv) Costs associated with relocating an inaccessible drinking
fountain.
(g) Duty to provide accessible features in the event of
disproportionality. (1) When the cost of alterations necessary
to make the path of travel to the altered area fully accessible
is disproportionate to the cost of the overall alteration, the
path of travel shall be made accessible to the extent that it
can be made accessible without incurring disproportionate costs.
(2) In choosing which accessible elements to provide, priority
should be given to those elements that will provide the greatest
access, in the following order:
(i) An accessible entrance;
(ii) An accessible route to the altered area;
(iii) At least one accessible restroom for each sex or a single
unisex restroom;
(iv) Accessible telephones;
(v) Accessible drinking fountains; and
(vi) When possible, additional accessible elements such as
parking, storage, and alarms.
(h) Series of smaller alterations. (1) The obligation to provide
an accessible path of travel may not be evaded by performing a
series of small alterations to the area served by a single path
of travel if those alterations could have been performed as a
single undertaking.
(2) (i) If an area containing a primary function has been
altered without providing an accessible path of travel to that
area, and subsequent alterations of that area, or a different
area on the same path of travel, are undertaken within three
years of the original alteration, the total cost of alterations
to the primary function areas on that path of travel during the
preceding three year period shall be considered in determining
whether the cost of making that path of travel accessible is
disproportionate.
(ii) Only alterations undertaken after January 26, 1992, shall
be considered in determining if the cost of providing an
accessible path of travel is disproportionate to the overall
cost of the alterations.
Sec.36.404 Alterations: Elevator exemption.
(a) This section does not require the installation of an
elevator in an altered facility that is less than three stories
or has less than 3,000 square feet per story, except with
respect to any facility that houses a shopping center, a
shopping mall, the professional office of a health care
provider, a terminal, depot, or other station used for specified
public transportation, or an airport passenger terminal.
(1) For the purposes of this section, "professional office of a
health care provider'' means a location where a person or entity
regulated by a State to provide professional services related to
the physical or mental health of an individual makes such
services available to the public. The facility that houses a
"professional office of a health care provider'' only includes
floor levels housing by at least one health care provider, or
any floor level designed or intended for use by at least one
health care provider.
(2) For the purposes of this section, shopping center or
shopping mall means --
(i) A building housing five or more sales or rental
establishments; or
(ii) A series of buildings on a common site, connected by a
common pedestrian access route above or below the ground floor,
that is either under common ownership or common control or
developed either as one project or as a series of related
projects, housing five or more sales or rental establishments.
For purposes of this section, places of public accommodation of
the types listed in paragraph (5) of the definition of "place of
public accommodation'' in Sec.36.104 are considered sales or
rental establishments. The facility housing a "shopping center
or shopping mall'' only includes floor levels housing at least
one sales or rental establishment, or any floor level designed
or intended for use by at least one sales or rental
establishment.
(b) The exemption provided in paragraph (a) of this section does
not obviate or limit in any way the obligation to comply with
the other accessibility requirements established in this
subpart. For example, alterations to floors above or below the
accessible ground floor must be accessible regardless of whether
the altered facility has an elevator.
Sec.36.405 Alterations: Historic preservation.
(a) Alterations to buildings or facilities that are eligible for
listing in the National Register of Historic Places under the
National Historic Preservation Act (16 U.S.C. 470 et seq.), or
are designated as historic under State or local law, shall
comply to the maximum extent feasible with section 4.1.7 of
appendix A to this part.
(b) If it is determined under the procedures set out in section
4.1.7 of appendix A that it is not feasible to provide physical
access to an historic property that is a place of public
accommodation in a manner that will not threaten or destroy the
historic significance of the building or facility, alternative
methods of access shall be provided pursuant to the requirements
of subpart C of this part.
Sec.36.406 Standards for new construction and alterations.
(a) New construction and alterations subject to this part shall
comply with the standards for accessible design published as
appendix A to this part (ADAAG).
(b) The chart in the appendix to this section provides guidance
to the user in reading appendix A to this part (ADAAG) together
with subparts A through D of this part, when determining
requirements for a particular facility.
Appendix to Sec.36.406
This chart has no effect for purposes of compliance or
enforcement. It does not necessarily provide complete or
mandatory (TABLE START) information.
Subparts A - D ADAAG
Application, General 36.102(b)(3): public accommodations
36.102(c): commercial facilities
36.102(e): public entities
36.103 (other laws) 36.401 ("for first occupancy'')
36.402(a) (alterations) 1, 2, 3, 4.1.1.
Definitions 36.104: commercial facilities, facility, place of
public accommodation, private club, public accommodation, public
entity, religious entity
36.401(d)(1)(ii), 36.404(a)(2): shopping center orshopping mall
36.401(d)(1)(i), 36.404(a)(1): professional office of a health
care provider
36.402: alteration; usability
36.402(c): to the maximum extent feasible 3.5 Definitions,
including: addition, alteration, building, element, facility,
space, story.
4.1.6(j), technical infeasibility.
New Construction: 36.401(a) General 4.1.2.
General 36.401(b) Commercial facilities in private residences
36.207 Places of public accommodation in private residences
4.1.3.
Work Areas
---------------------------------------------------------
4.1.1(3)
Structural Impracticability 36.401(c) 4.1.1(5)(a).
Elevator Exemption 36.401(d)
36.404 4.1.3(5).
Other Exceptions
---------------------------------------------------------
4.1.1(5), 4.1.3(5) and throughout.
Alterations: General 36.401(b): commercial facilities in private
residences
36.402 4.1.6(1).
Alterations Affecting an Area Containing A Primary Function;
Path of Travel; Disproportionality 36.403 4.1.6(2).
Alterations: Special Technical Provisions
---------------------------------------------------------
4.1.6(3).
Additions 36.401 - 36.405 4.1.5.
Historic Preservation 36.405 4.1.7.
Technical Provisions
--------------------------------------------------------- 4.2
through 4.35.
Restaurants and Cafeterias
--------------------------------------------------------- 5.
Medical Care Facilities
--------------------------------------------------------- 6.
Business and Mercantile
--------------------------------------------------------- 7.
Libraries
--------------------------------------------------------- 8.
Transient Lodging (Hotels, Homeless Shelters, Etc.)
--------------------------------------------------------- 9.
Transportation Facilities
--------------------------------------------------------- 10.
[Order No. 1513 - 91, 56 FR 35592, July 26, 1991, as amended by
Order No. 1836 - 94, 59 FR 2675, Jan. 18, 1994]
Sec.36.407 Temporary suspension of certain detectable warning
requirements.
The requirements contained in sections 4.7.7, 4.29.5, and 4.29.6
of appendix A to this part are suspended temporarily until July
26, 1996.
[Order No. 1852 - 94, 59 FR 17446, Apr. 12, 1994]
Sec..36.408 -- 36.499 [Reserved]
Subpart E -- Enforcement
Sec.36.501 Private suits.
(a) General. Any person who is being subjected to discrimination
on the basis of disability in violation of the Act or this part
or who has reasonable grounds for believing that such person is
about to be subjected to discrimination in violation of section
303 of the Act or subpart D of this part may institute a civil
action for preventive relief, including an application for a
permanent or temporary injunction, restraining order, or other
order. Upon timely application, the court may, in its
discretion, permit the Attorney General to intervene in the
civil action if the Attorney General or his or her designee
certifies that the case is of general public importance. Upon
application by the complainant and in such circumstances as the
court may deem just, the court may appoint an attorney for such
complainant and may authorize the commencement of the civil
action without the payment of fees, costs, or security. Nothing
in this section shall require a person with a disability to
engage in a futile gesture if the person has actual notice that
a person or organization covered by title III of the Act or this
part does not intend to comply with its provisions.
(b) Injunctive relief. In the case of violations of Sec.36.304,
Sec..36.308, 36.310(b), 36.401, 36.402, 36.403, and 36.405 of
this part, injunctive relief shall include an order to alter
facilities to make such facilities readily accessible to and
usable by individuals with disabilities to the extent required
by the Act or this part. Where appropriate, injunctive relief
shall also include requiring the provision of an auxiliary aid
or service, modification of a policy, or provision of
alternative methods, to the extent required by the Act or this
part.
Sec.36.502 Investigations and compliance reviews.
(a) The Attorney General shall investigate alleged violations of
the Act or this part.
(b) Any individual who believes that he or she or a specific
class of persons has been subjected to discrimination prohibited
by the Act or this part may request the Department to institute
an investigation.
(c) Where the Attorney General has reason to believe that there
may be a violation of this part, he or she may initiate a
compliance review.
Sec.36.503 Suit by the Attorney General.
Following a compliance review or investigation under Sec.36.502,
or at any other time in his or her discretion, the Attorney
General may commence a civil action in any appropriate United
States district court if the Attorney General has reasonable
cause to believe that --
(a) Any person or group of persons is engaged in a pattern or
practice of discrimination in violation of the Act or this part;
or
(b) Any person or group of persons has been discriminated
against in violation of the Act or this part and the
discrimination raises an issue of general public importance.
Sec.36.504 Relief.
(a) Authority of court. In a civil action under Sec.36.503, the
court --
(1) May grant any equitable relief that such court considers to
be appropriate, including, to the extent required by the Act or
this part --
(i) Granting temporary, preliminary, or permanent relief;
(ii) Providing an auxiliary aid or service, modification of
policy, practice, or procedure, or alternative method; and
(iii) Making facilities readily accessible to and usable by
individuals with disabilities;
(2) May award other relief as the court considers to be
appropriate, including monetary damages to persons aggrieved
when requested by the Attorney General; and
(3) May, to vindicate the public interest, assess a civil
penalty against the entity in an amount
(i) Not exceeding $50,000 for a first violation occurring before
September 29, 1999, and not exceeding $55,000 for a first
violation occurring on or after September 29, 1999; and
(ii) Not exceeding $100,000 for any subsequent violation
occurring before September 29, 1999, and not exceeding $110,000
for any subsequent violation occurring on or after September 29,
1999.
(b) Single violation. For purposes of paragraph (a) (3) of this
section, in determining whether a first or subsequent violation
has occurred, a determination in a single action, by judgment or
settlement, that the covered entity has engaged in more than one
discriminatory act shall be counted as a single violation.
(c) Punitive damages. For purposes of paragraph (a)(2) of this
section, the terms "monetary damages'' and "such other relief''
do not include punitive damages.
(d) Judicial consideration. In a civil action under Sec.36.503,
the court, when considering what amount of civil penalty, if
any, is appropriate, shall give consideration to any good faith
effort or attempt to comply with this part by the entity. In
evaluating good faith, the court shall consider, among other
factors it deems relevant, whether the entity could have
reasonably anticipated the need for an appropriate type of
auxiliary aid needed to accommodate the unique needs of a
particular individual with a disability.
Sec.36.505 Attorneys fees.
In any action or administrative proceeding commenced pursuant to
the Act or this part, the court or agency, in its discretion,
may allow the prevailing party, other than the United States, a
reasonable attorney's fee, including litigation expenses, and
costs, and the United States shall be liable for the foregoing
the same as a private individual.
Sec.36.506 Alternative means of dispute resolution.
Where appropriate and to the extent authorized by law, the use
of alternative means of dispute resolution, including settlement
negotiations, conciliation, facilitation, mediation, factfinding,
minitrials, and arbitration, is encouraged to resolve disputes
arising under the Act and this part.
Sec.36.507 Effect of unavailability of technical assistance.
A public accommodation or other private entity shall not be
excused from compliance with the requirements of this part
because of any failure to receive technical assistance,
including any failure in the development or dissemination of any
technical assistance manual authorized by the Act.
Sec.36.508 Effective date.
(a) General. Except as otherwise provided in this section and in
this part, this part shall become effective on January 26, 1992.
(b) Civil actions. Except for any civil action brought for a
violation of section 303 of the Act, no civil action shall be
brought for any act or omission described in section 302 of the
Act that occurs --
(1) Before July 26, 2012, against businesses with 25 or fewer
employees and gross receipts of $1,000,000 or less.
(2) Before January 26, 2013, against businesses with 10 or fewer
employees and gross receipts of $500,000 or less.
(c) Transportation services provided by public accommodations.
Newly purchased or leased vehicles required to be accessible by
Sec.36.310 must be readily accessible to and usable by
individuals with disabilities, including individuals who use
wheelchairs, if the solicitation for the vehicle is made after
August 25, 1990.
Sec..36.509 -- 36.599 [Reserved]
Subpart F -- Certification of State Laws or Local Building Codes
Sec.36.601 Definitions.
Assistant Attorney General means the Assistant Attorney General
for Civil Rights or his or her designee.
Certification of equivalency means a final certification that a
code meets or exceeds the minimum requirements of title III of
the Act for accessibility and usability of facilities covered by
that title.
Code means a State law or local building code or similar
ordinance, or part thereof, that establishes accessibility
requirements.
Model code means a nationally recognized document developed by a
private entity for use by State or local jurisdictions in
developing codes as defined in this section. A model code is
intended for incorporation by reference or adoption in whole or
in part, with or without amendment, by State or local
jurisdictions.
Preliminary determination of equivalency means a preliminary
determination that a code appears to meet or exceed the minimum
requirements of title III of the Act for accessibility and
usability of facilities covered by that title.
Submitting official means the State or local official who --
(1) Has principal responsibility for administration of a code,
or is authorized to submit a code on behalf of a jurisdiction;
and
(2) Files a request for certification under this subpart.
Sec.36.602 General rule.
On the application of a State or local government, the Assistant
Attorney General may certify that a code meets or exceeds the
minimum requirements of the Act for the accessibility and
usability of places of public accommodation and commercial
facilities under this part by issuing a certification of
equivalency. At any enforcement proceeding under title III of
the Act, such certification shall be rebuttable evidence that
such State law or local ordinance does meet or exceed the
minimum requirements of title III.
Sec.36.603 Filing request for certification.
(a) A submitting official may file a request for certification
of a code under this subpart.
(b) Before filing a request for certification of a code, the
submitting official shall ensure that --
(1) Adequate public notice of intention to file a request for
certification, notice of a hearing, and notice of the location
at which the request and materials can be inspected is published
within the relevant jurisdiction;
(2) Copies of the proposed request and supporting materials are
made available for public examination and copying at the office
of the State or local agency charged with administration and
enforcement of the code; and
(3) The local or State jurisdiction holds a public hearing on
the record, in the State or locality, at which the public is
invited to comment on the proposed request for certification.
(c) The submitting official shall include the following
materials and information in support of the request:
(1) The text of the jurisdiction's code; any standard,
regulation, code, or other relevant document incorporated by
reference or otherwise referenced in the code; the law creating
and empowering the agency; any relevant manuals, guides, or any
other interpretive information issued that pertain to the code;
and any formal opinions of the State Attorney General or the
chief legal officer of the jurisdiction that pertain to the
code;
(2) Any model code or statute on which the pertinent code is
based, and an explanation of any differences between the model
and the pertinent code;
(3) A transcript of the public hearing required by paragraph
(b)(3) of this section; and
(4) Any additional information that the submitting official may
wish to be considered.
(d) The submitting official shall file the original and one copy
of the request and of supporting materials with the Assistant
Attorney General. The submitting official shall clearly label
the request as a "request for certification'' of a code. A copy
of the request and supporting materials will be available for
public examination and copying at the offices of the Assistant
Attorney General in Washington, DC. The submitting official
shall ensure that copies of the request and supporting materials
are available for public examination and copying at the office
of the State or local agency charged with administration and
enforcement of the code. The submitting official shall ensure
that adequate public notice of the request for certification and
of the location at which the request and materials can be
inspected is published within the relevant jurisdiction.
(e) Upon receipt of a request for certification, the Assistant
Attorney General may request further information that he or she
considers relevant to the determinations required to be made
under this subpart.
(Approved by the Office of Management and Budget under control
number 1190 - 0005)
[56 FR 35592, July 26, 2011, as amended by Order No. 1679 - 93,
58 FR 17522, Apr. 5, 2013]
Sec.36.604 Preliminary determination.
After consultation with the Architectural and Transportation
Barriers Compliance Board, the Assistant Attorney General shall
make a preliminary determination of equivalency or a preliminary
determination to deny certification.
Sec.36.605 Procedure following preliminary determination of
equivalency.
(a) If the Assistant Attorney General makes a preliminary
determination of equivalency under Sec.36.604, he or she shall
inform the submitting official, in writing, of that preliminary
determination. The Assistant Attorney General shall also --
(1) Publish a notice in the Federal Register that advises the
public of the preliminary determination of equivalency with
respect to the particular code, and invite interested persons
and organizations, including individuals with disabilities,
during a period of at least 60 days following publication of the
notice, to file written comments relevant to whether a final
certification of equivalency should be issued;
(2) After considering the information received inresponse to the
notice described in paragraph (a) of this section, and after
publishing a separate notice in the Federal Register, hold an
informal hearing in Washington, DC at which interested persons,
including individuals with disabilities, are provided an
opportunity to express their views with respect to the
preliminary determination of equivalency; and
(b) The Assistant Attorney General, after consultation with the
Architectural and Transportation Barriers Compliance Board, and
consideration of the materials and information submitted
pursuant to this section and Sec.36.603, shall issue either a
certification of equivalency or a final determination to deny
the request for certification. He or she shall publish notice of
the certification of equivalency or denial of certification in
the Federal Register.
Sec.36.606 Procedure following preliminary denial of
certification.
(a) If the Assistant Attorney General makes a Preliminary
determination to deny certification of a code under Sec.36.604,
he or she shall notify the submitting official of the
determination. The notification may include specification of the
manner in which the code could be amended in order to qualify
for certification.
(b) The Assistant Attorney General shall allow the submitting
official not less than 15 days to submit data, views, and
arguments in opposition to the preliminary determination to deny
certification. If the submitting official does not submit
materials, the Assistant Attorney General shall not be required
to take any further action. If the submitting official submits
materials, the Assistant Attorney General shall evaluate those
materials and any other relevant information. After evaluation
of any newly submitted materials, the Assistant Attorney General
shall make either a final denial of certification or a
preliminary determination of equivalency.
Sec.36.607 Effect of certification.
(a)(1) A certification shall be considered a certification of
equivalency only with respect to those features or elements that
are both covered by the certified code and addressed by the
standards against which equivalency is measured.
(2) For example, if certain equipment is not covered by the
code, the determination of equivalency cannot be used as
evidence with respect to the question of whether equipment in a
building built according to the code satisfies the Act's
requirements with respect to such equipment. By the same token,
certification would not be relevant to construction of a
facility for children, if the regulations against which
equivalency is measured do not address children's facilities.
(b) A certification of equivalency is effective only with
respect to the particular edition of the code for which
certification is granted. Any amendments or other changes to the
code after the date of the certified edition are not considered
part of the certification.
(c) A submitting official may reapply for certification of
amendments or other changes to a code that has already received
certification.
Sec.36.608 Guidance concerning model codes.
Upon application by an authorized representative of a private
entity responsible for developing a model code, the Assistant
Attorney General may review the relevant model code and issue
guidance concerning whether and in what respects the model code
is consistent with the minimum requirements of the Act for the
accessibility and usability of places of public accommodation
and commercial facilities under this part.
Pt. 36, App. A
Appendix A to Part 36 -- Standards for Accessible Design
ADA ACCESSIBILITY GUIDELINES FOR BUILDINGS AND FACILITIES
TABLE OF CONTENTS
1. PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. GENERAL. . . . . . . . . . . . . . . . . . . . . . . . . .
2.1 Provisions for Adults . . . . . . . . . . . . . . . .
2.2* Equivalent Facilitation. . . . . . . . . . . . . . .
1
1
1
3. MISCELLANEOUS INSTRUCTIONS AND DEFINITIONS . . . . . . . .
3.1 Graphic Conventions . . . . . . . . . . . . . . . . .
3.2 Dimensional Tolerances. . . . . . . . . . . . . . . .
3.3 Notes . . . . . . . . . . . . . . . . . . . . . . . .
3.4 General Terminology . . . . . . . . . . . . . . . . .
3.5 Definitions . . . . . . . . . . . . . . . . . . . . .
1
1
1
1
2
2
4. ACCESSIBLE ELEMENTS AND SPACES: SCOPE AND TECHNICAL
REQUIREMENTS . . . . . . . . . . . .
4.1 Minimum Requirements . . . . . . . . . . . . . . . .
4.1.1* Application . . . . . . . . . . . . . . . . . . .
4.1.2 Accessible Sites and Exterior Facilities: New
Construction. . . . . . . . . . . . . . .
4.1.3 Accessible Buildings: New Construction . . . . . .
4.1.4 (Reserved) . . . . . . . . . . . . . . . . . . . .
4.1.5 Accessible Buildings: Additions. . . . . . . . . .
4.1.6 Accessible Buildings: Alterations. . . . . . . . .
4.1.7 Accessible Buildings: Historic Preservation. . . .
4.2 Space Allowance and Reach Ranges . . . . . . . . . .
4.3 Accessible Route . . . . . . . . . . . . . . . . . .
4.4 Protruding Objects . . . . . . . . . . . . . . . . .
4.5 Ground and Floor Surfaces . . . . . . . . . . . . .
4.6 Parking and Passenger Loading Zones . . . . . . . .
4.7 Curb Ramps . . . . . . . . . . . . . . . . . . . . .
4.8 Ramps . . . . . . . . . . . . . . . . . . . . . . .
4.9 Stairs . . . . . . . . . . . . . . . . . . . . . . .
4.10 Elevators . . . . . . . . . . . . . . . . . . . . .
4.11 Platform Lifts (Wheelchair Lifts) . . . . . . . . .
4.12 Windows . . . . . . . . . . . . . . . . . . . . . .
4.13 Doors . . . . . . . . . . . . . . . . . . . . . . .
4.14 Entrances . . . . . . . . . . . . . . . . . . . . .
4.15 Drinking Fountains and Water Coolers . . . . . . .
4.16 Water Closets . . . . . . . . . . . . . . . . . . .
4.17 Toilet Stalls . . . . . . . . . . . . . . . . . . .
4.18 Urinals . . . . . . . . . . . . . . . . . . . . . .
4.19 Lavatories and Mirrors . . . . . . . . . . . . . .
4.20 Bathtubs . . . . . . . . . . . . . . . . . . . . .
4.21 Shower Stalls . . . . . . . . . . . . . . . . . . .
4.22 Toilet Rooms . . . . . . . . . . . . . . . . . . .
4.23 Bathrooms, Bathing Facilities, and Shower Rooms . .
4.24 Sinks . . . . . . . . . . . . . . . . . . . . . . .
4.25 Storage . . . . . . . . . . . . . . . . . . . . . .
4.26 Handrails, Grab Bars, and Tub and Shower Seats . .
4.27 Controls and Operating Mechanisms . . . . . . . . .
4.28 Alarms . . . . . . . . . . . . . . . . . . . . . .
4.29 Detectable Warnings . . . . . . . . . . . . . . . .
4.30 Signage . . . . . . . . . . . . . . . . . . . . . .
4.31 Telephones . . . . . . . . . . . . . . . . . . . .
4.32 Fixed or Built-in Seating and Tables . . . . . . .
4.33 Assembly Areas . . . . . . . . . . . . . . . . . .
4.34 Automated Teller Machines . . . . . . . . . . . . .
4.35 Dressing and Fitting Rooms . . . . . . . . . . . .
5. RESTAURANTS AND CAFETERIAS. . . . . . . . . . . . . . . . .
59
6. MEDICAL CARE FACILITIES . . . . . . . . . . . . . . . . . .
60
7. BUSINESS AND MERCANTILE . . . . . . . . . . . . . . . . . .
61
8. LIBRARIES . . . . . . . . . . . . . . . . . . . . . . . . .
62
9. ACCESSIBLE TRANSIENT LODGING. . . . . . . . . . . . . . . .
63
10. TRANSPORTATION FACILITIES. . . . . . . . . . . . . . . . .
67
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . .
A1
1. PURPOSE.
This document sets guidelines for accessibility to places of
public accommodation and commercial facilities by individuals
with disabilities. These guidelines are to be applied during the
design, construction, and alteration of such buildings and
facilities to the extent required by regulations issued by
Federal agencies, including the Department of Justice, under the
Americans with Disabilities Act of 1990.
The technical specifications 4.2 through 4.35, of these
guidelines are the same as those of the American National
Standard Institute's document A117.1-1980, except as noted in
this text by italics. However, sections 4.1.1 through 4.1.7 and
sections 5 through 10 are different from ANSI A117.1 in their
entirety and are printed in standard type.
The illustrations and text of ANSI A117.1 are reproduced with
permission from the American National Standards Institute.
Copies of the standard may be purchased from the American
National Standards Institute at 1430 Broadway, New York, New
York 10018.
2. GENERAL.
2.1 Provisions for Adults. The specifications in these
guidelines are based upon adult dimensions and anthropometrics.
2.2* Equivalent Facilitation. Departures from particular
technical and scoping requirements of this guideline by the use
of other designs and technologies are permitted where the
alternative designs and technologies used will provide
substantially equivalent or greater access to and usability of
the facility.
3. MISCELLANEOUS INSTRUCTIONS AND DEFINITIONS.
3.1 Graphic Conventions. Graphic conventions are shown in Table
1. Dimensions that are not marked minimum or maximum are
absolute, unless otherwise indicated in the text or captions.
3.2 Dimensional Tolerances. All dimensions are subject to
conventional building industry tolerances for field conditions.
3.3 Notes. The text of these guidelines does not contain notes
or footnotes. Additional information, explanations, and advisory
materials are located in the Appendix. Paragraphs marked with an
asterisk have related, nonmandatory material in the Appendix. In
the Appendix, the corresponding paragraph numbers are preceded
by an A.
3.4 General Terminology.
comply with. Meet one or more specifications of these
guidelines.
if, if ... then. Denotes a specification that applies only when
the conditions described are present.
may. Denotes an option or alternative.
shall. Denotes a mandatory specification or requirement.
should. Denotes an advisory specification or recommendation.
3.5 Definitions.
Access Aisle. An accessible pedestrian space between elements,
such as parking spaces, seating, and desks, that provides
clearances appropriate for use of the elements.
Accessible. Describes a site, building, facility, or portion
thereof that complies with these guidelines.
Accessible Element. An element specified by these guidelines
(for example, telephone, controls, and the like).
Accessible Route. A continuous unobstructed path connecting all
accessible elements and spaces of a building or facility.
Interior accessible routes may include corridors, floors, ramps,
elevators, lifts, and clear floor space at fixtures. Exterior
accessible routes may include parking access aisles, curb ramps,
crosswalks at vehicular ways, walks, ramps, and lifts.
Accessible Space. Space that complies with these guidelines.
Adaptability. The ability of certain building spaces and
elements, such as kitchen counters, sinks, and grab bars, to be
added or altered so as to accommodate the needs of individuals
with or without disabilities or to accommodate the needs of
persons with different types or degrees of disability.
Addition. An expansion, extension, or increase in the gross
floor area of a building or facility.
Administrative Authority. A governmental agency that adopts or
enforces regulations and guidelines for the design,
construction, or alteration of buildings and facilities.
Alteration. An alteration is a change to a building or facility
made by, on behalf of, or for the use of a public accommodation
or commercial facility, that affects or could affect the
usability of the building or facility or part thereof.
Alterations include, but are not limited to, remodeling,
renovation, rehabilitation, reconstruction, historic
restoration, changes or rearrangement of the structural parts or
elements, and changes or rearrangement in the plan configuration
of walls and full-height partitions. Normal maintenance,
reroofing, painting or wallpapering, or changes to mechanical
and electrical systems are not alterations unless they affect
the usability of the building or facility.
Area of Rescue Assistance. An area, which has direct access to
an exit, where people who are unable to use stairs may remain
temporarily in safety to await further instructions or
assistance during emergency evacuation.
Assembly Area. A room or space accommodating a group of
individuals for recreational, educational, political, social, or
amusement purposes, or for the consumption of food and drink.
Automatic Door. A door equipped with a power-operated mechanism
and controls that open and close the door automatically upon
receipt of a momentary actuating signal. The switch that begins
the automatic cycle may be a photoelectric device, floor mat, or
manual switch (see power-assisted door).
Building. Any structure used and intended for supporting or
sheltering any use or occupancy.
Circulation Path. An exterior or interior way of passage from
one place to another for pedestrians, including, but not limited
to, walks, hallways, courtyards, stairways, and stair landings.
Clear. Unobstructed.
Clear Floor Space. The minimum unobstructed floor or ground
space required to accommodate a single, stationary wheelchair
and occupant.
Closed Circuit Telephone. A telephone with dedicated line(s)
such as a house phone, courtesy phone or phone that must be used
to gain entrance to a facility.
Common Use. Refers to those interior and exterior rooms, spaces,
or elements that are made available for the use of a restricted
group of people (for example, occupants of a homeless shelter,
the occupants of an office building, or the guests of such
occupants).
Cross Slope. The slope that is perpendicular to the direction of
travel (see running slope).
Curb Ramp. A short ramp cutting through a curb or built up to
it.
Detectable Warning. A standardized surface feature built in or
applied to walking surfaces or other elements to warn visually
impaired people of hazards on a circulation path.
Dwelling Unit. A single unit which provides a kitchen or food
preparation area, in addition to rooms and spaces for living,
bathing, sleeping, and the like. Dwelling units include a single
family home or a townhouse used as a transient group home; an
apartment building used as a shelter; guestrooms in a hotel that
provide sleeping accommodations and food preparation areas; and
other similar facilities used on a transient basis. For purposes
of these guidelines, use of the term "Dwelling Unit" does not
imply the unit is used as a residence.
Egress, Means of. A continuous and unobstructed way of exit
travel from any point in a building or facility to a public way.
A means of egress comprises vertical and horizontal travel and
may include intervening room spaces, doorways, hallways,
corridors, passageways, balconies, ramps, stairs, enclosures,
lobbies, horizontal exits, courts and yards. An accessible means
of egress is one that complies with these guidelines and does
not include stairs, steps, or escalators. Areas of rescue
assistance or evacuation elevators may be included as part of
accessible means of egress.
Element. An architectural or mechanical component of a building,
facility, space, or site, e.g., telephone, curb ramp, door,
drinking fountain, seating, or water closet.
Entrance. Any access point to a building or portion of a
building or facility used for the purpose of entering. An
entrance includes the approach walk, the vertical access leading
to the entrance platform, the entrance platform itself,
vestibules if provided, the entry door(s) or gate(s), and the
hardware of the entry door(s) or gate(s).
Facility. All or any portion of buildings, structures, site
improvements, complexes, equipment, roads, walks, passageways,
parking lots, or other real or personal property located on a
site.
Ground Floor. Any occupiable floor less than one story above or
below grade with direct access to grade. A building or facility
always has at least one ground floor and may have more than one
ground floor as where a split level entrance has been provided
or where a building is built into a hillside.
Mezzanine or Mezzanine Floor. That portion of a story which is
an intermediate floor level placed within the story and having
occupiable space above and below its floor.
Marked Crossing. A crosswalk or other identified path intended
for pedestrian use in crossing a vehicular way.
Multifamily Dwelling. Any building containing more than two
dwelling units.
Occupiable. A room or enclosed space designed for human
occupancy in which individuals congregate for amusement,
educational or similar purposes, or in which occupants are
engaged at labor, and which is equipped with means of egress,
light, and ventilation.
Operable Part. A part of a piece of equipment or appliance used
to insert or withdraw objects, or to activate, deactivate, or
adjust the equipment or appliance (for example, coin slot,
pushbutton, handle).
Path of Travel. (Reserved).
Power-assisted Door. A door used for human passage with a
mechanism that helps to open the door, or relieves the opening
resistance of a door, upon the activation of a switch or a
continued force applied to the door itself.
Public Use. Describes interior or exterior rooms or spaces that
are made available to the general public. Public use may be
provided at a building or facility that is privately or publicly
owned.
Ramp. A walking surface which has a running slope greater than
1:20.
Running Slope. The slope that is parallel to the direction of
travel (see cross slope).
Service Entrance. An entrance intended primarily for delivery of
goods or services.
Signage. Displayed verbal, symbolic, tactile, and pictorial
information.
Site. A parcel of land bounded by a property line or a
designated portion of a public right-of-way.
Site Improvement. Landscaping, paving for pedestrian and
vehicular ways, outdoor lighting, recreational facilities, and
the like, added to a site.
Sleeping Accommodations. Rooms in which people sleep; for
example, dormitory and hotel or motel guest rooms or suites.
Space. A definable area, e.g., room, toilet room, hall, assembly
area, entrance, storage room, alcove, courtyard, or lobby.
Story. That portion of a building included between the upper
surface of a floor and upper surface of the floor or roof next
above. If such portion of a building does not include occupiable
space, it is not considered a story for purposes of these
guidelines. There may be more than one floor level within a
story as in the case of a mezzanine or mezzanines.
Structural Frame. The structural frame shall be considered to be
the columns and the girders, beams, trusses and spandrels having
direct connections to the columns and all other members which
are essential to the stability of the building as a whole.
Tactile. Describes an object that can be perceived using the
sense of touch.
Text Telephone. Machinery or equipment that employs interactive
graphic (i.e., typed) communications through the transmission of
coded signals across the standard telephone network. Text
telephones can include, for example, devices known as TDD's
(telecommunication display devices or telecommunication devices
for deaf persons) or computers.
Transient Lodging. A building, facility, or portion thereof,
excluding inpatient medical care facilities, that contains one
or more dwelling units or sleeping accommodations. Transient
lodging may include, but is not limited to, resorts, group
homes, hotels, motels, and dormitories.
Vehicular Way. A route intended for vehicular traffic, such as a
street, driveway, or parking lot.
Walk. An exterior pathway with a prepared surface intended for
pedestrian use, including general pedestrian areas such as
plazas and courts.
NOTE: Sections 4.1.1 through 4.1.7 are different from ANSI
A117.1 in their entirety and are printed in standard type (ANSI
A117.1 does not include scoping provisions).
4. ACCESSIBLE ELEMENTS AND SPACES: SCOPE AND TECHNICAL
REQUIREMENTS.
4.1 Minimum Requirements
4.1.1* Application.
(1) General. All areas of newly designed or newly constructed
buildings and facilities required to be accessible by 4.1.2 and
4.1.3 and altered portions of existing buildings and facilities
required to be accessible by 4.1.6 shall comply with these
guidelines, 4.1 through 4.35, unless otherwise provided in this
section or as modified in a special application section.
(2) Application Based on Building Use. Special application
sections 5 through 10 provide additional requirements for
restaurants and cafeterias, medical care facilities, business
and mercantile, libraries, accessible transient lodging, and
transportation facilities. When a building or facility contains
more than one use covered by a special application section, each
portion shall comply with the requirements for that use.
(3)* Areas Used Only by Employees as Work Areas. Areas that are
used only as work areas shall be designed and constructed so
that individuals with disabilities can approach, enter, and exit
the areas. These guidelines do not require that any areas used
only as work areas be constructed to permit maneuvering within
the work area or be constructed or equipped (i.e., with racks or
shelves) to be accessible.
(4) Temporary Structures. These guidelines cover temporary
buildings or facilities as well as permanent facilities.
Temporary buildings and facilities are not of permanent
construction but are extensively used or are essential for
public use for a period of time. Examples of temporary buildings
or facilities covered by these guidelines include, but are not
limited to: reviewing stands, temporary classrooms, bleacher
areas, exhibit areas, temporary banking facilities, temporary
health screening services, or temporary safe pedestrian
passageways around a construction site. Structures, sites and
equipment directly associated with the actual processes of
construction, such as scaffolding, bridging, materials hoists,
or construction trailers are not included.
(5) General Exceptions.
(a) In new construction, a person or entity is not required to
meet fully the requirements of these guidelines where that
person or entity can demonstrate that it is structurally
impracticable to do so. Full compliance will be considered
structurally impracticable only in those rare circumstances when
the unique characteristics of terrain prevent the incorporation
of accessibility features. If full compliance with the
requirements of these guidelines is structurally impracticable,
a person or entity shall comply with the requirements to the
extent it is not structurally impracticable. Any portion of the
building or facility which can be made accessible shall comply
to the extent that it is not structurally impracticable.
(b) Accessibility is not required to (i) observation galleries
used primarily for security purposes; or (ii) in non-occupiable
spaces accessed only by ladders, catwalks, crawl spaces, very
narrow passageways, or freight (non-passenger) elevators, and
frequented only by service personnel for repair purposes; such
spaces include, but are not limited to, elevator pits, elevator
penthouses, piping or equipment catwalks.
4.1.2 Accessible Sites and Exterior Facilities: New
Construction. An accessible site shall meet the following
minimum requirements:
(1) At least one accessible route complying with 4.3 shall be
provided within the boundary of the site from public
transportation stops, accessible parking spaces, passenger
loading zones if provided, and public streets or sidewalks, to
an accessible building entrance.
(2) At least one accessible route complying with 4.3 shall
connect accessible buildings, accessible facilities, accessible
elements, and accessible spaces that are on the same site.
(3) All objects that protrude from surfaces or posts into
circulation paths shall comply with 4.4.
(4) Ground surfaces along accessible routes and in accessible
spaces shall comply with 4.5.
(5) (a) If parking spaces are provided for self-parking by
employees or visitors, or both, then accessible spaces complying
with 4.6 shall be provided in each such parking area in
conformance with the table below. Spaces required by the table
need not be provided in the particular lot. They may be provided
in a different location if equivalent or greater accessibility,
in terms of distance from an accessible entrance, cost and
convenience is ensured.
Total Parking in Lot Required Minimum Number of Accessible
Spaces
1 to 25
26 to 50
51 to 75
76 to 100
101 to 150
151 to 200
201 to 300
301 to 400
401 to 500
501 to 1000
1001 and over 1
2
3
4
5
6
7
8
9
2 percent of total
20, plus 1 for each 100 over 1000
Except as provided in (b), access aisles adjacent to accessible
spaces shall be 60 in (1525 mm) wide minimum.
(b) One in every eight accessible spaces, but not less than one,
shall be served by an access aisle 96 in (2440 mm) wide minimum
and shall be designated "van accessible" as required by 4.6.4.
The vertical clearance at such spaces shall comply with 4.6.5.
All such spaces may be grouped on one level of a parking
structure.
EXCEPTION: Provision of all required parking spaces in
conformance with "Universal Parking Design" (see appendix
A4.6.3) is permitted.
(c) If passenger loading zones are provided, then at least one
passenger loading zone shall comply with 4.6.6.
(d) At facilities providing medical care and other services for
persons with mobility impairments, parking spaces complying with
4.6 shall be provided in accordance with 4.1.2(5)(a) except as
follows:
(i) Outpatient units and facilities: 10 percent of the total
number of parking spaces provided serving each such outpatient
unit or facility;
(ii) Units and facilities that specialize in treatment or
services for persons with mobility impairments: 20 percent of
the total number of parking spaces provided serving each such
unit or facility.
(e)* Valet parking: Valet parking facilities shall provide a
passenger loading zone complying with 4.6.6 located on an
accessible route to the entrance of the facility. Paragraphs
5(a), 5(b), and 5(d) of this section do not apply to valet
parking facilities.
(6) If toilet facilities are provided on a site, then each such
public or common use toilet facility shall comply with 4.22. If
bathing facilities are provided on a site, then each such public
or common use bathing facility shall comply with 4.23.
For single user portable toilet or bathing units clustered at a
single location, at least 5% but no less than one toilet unit or
bathing unit complying with 4.22 or 4.23 shall be installed at
each cluster whenever typical inaccessible units are provided.
Accessible units shall be identified by the International Symbol
of Accessibility.
EXCEPTION: Portable toilet units at construction sites used
exclusively by construction personnel are not required to comply
with 4.1.2(6).
(7) Building Signage. Signs which designate permanent rooms and
spaces shall comply with 4.30.1, 4.30.4, 4.30.5 and 4.30.6.
Other signs which provide direction to, or information about,
functional spaces of the building shall comply with 4.30.1,
4.30.2, 4.30.3, and 4.30.5. Elements and spaces of accessible
facilities which shall be identified by the International Symbol
of Accessibility and which shall comply with 4.30.7 are:
(a) Parking spaces designated as reserved for individuals with
disabilities;
(b) Accessible passenger loading zones;
(c) Accessible entrances when not all are accessible
(inaccessible entrances shall have directional signage to
indicate the route to the nearest accessible entrance);
(d) Accessible toilet and bathing facilities when not all are
accessible.
4.1.3 Accessible Buildings: New Construction. Accessible
buildings and facilities shall meet the following minimum
requirements:
(1) At least one accessible route complying with 4.3 shall
connect accessible building or facility entrances with all
accessible spaces and elements within the building or facility.
(2) All objects that overhang or protrude into circulation paths
shall comply with 4.4.
(3) Ground and floor surfaces along accessible routes and in
accessible rooms and spaces shall comply with 4.5.
(4) Interior and exterior stairs connecting levels that are not
connected by an elevator, ramp, or other accessible means of
vertical access shall comply with 4.9.
(5)* One passenger elevator complying with 4.10 shall serve each
level, including mezzanines, in all multi-story buildings and
facilities unless exempted below. If more than one elevator is
provided, each full passenger elevator shall comply with 4.10.
EXCEPTION 1: Elevators are not required in facilities that are
less than three stories or that have less than 3000 square feet
per story unless the building is a shopping center, a shopping
mall, or the professional office of a health care provider, or
another type of facility as determined by the Attorney General.
The elevator exemption set forth in this paragraph does not
obviate or limit in any way the obligation to comply with the
other accessibility requirements established in section 4.1.3.
For example, floors above or below the accessible ground floor
must meet the requirements of this section except for elevator
service. If toilet or bathing facilities are provided on a level
not served by an elevator, then toilet or bathing facilities
must be provided on the accessible ground floor. In new
construction if a building or facility is eligible for this
exemption but a full passenger elevator is nonetheless planned,
that elevator shall meet the requirements of 4.10 and shall
serve each level in the building. A full passenger elevator that
provides service from a garage to only one level of a building
or facility is not required to serve other levels.
EXCEPTION 2: Elevator pits, elevator penthouses, mechanical
rooms, piping or equipment catwalks are exempted from this
requirement.
EXCEPTION 3: Accessible ramps complying with 4.8 may be used in
lieu of an elevator.
EXCEPTION 4: Platform lifts (wheelchair lifts) complying with
4.11 of this guideline and applicable state or local codes may
be used in lieu of an elevator only under the following
conditions:
(a) To provide an accessible route to a performing area in an
assembly occupancy.
(b) To comply with the wheelchair viewing position line-of-sight
and dispersion requirements of 4.33.3.
(c) To provide access to incidental occupiable spaces and rooms
which are not open to the general public and which house no more
than five persons, including but not limited to equipment
control rooms and projection booths.
(d) To provide access where existing site constraints or other
constraints make use of a ramp or an elevator infeasible.
(6) Windows: (Reserved).
(7) Doors:
(a) At each accessible entrance to a building or facility, at
least one door shall comply with 4.13.
(b) Within a building or facility, at least one door at each
accessible space shall comply with 4.13.
(c) Each door that is an element of an accessible route shall
comply with 4.13.
(d) Each door required by 4.3.10, Egress, shall comply with
4.13.
(8) In new construction, at a minimum, the requirements in (a)
and (b) below shall be satisfied independently:
(a)(i) At least 50% of all public entrances (excluding those in
(b) below) must be accessible. At least one must be a ground
floor entrance. Public entrances are any entrances that are not
loading or service entrances.
(ii) Accessible entrances must be provided in a number at least
equivalent to the number of exits required by the applicable
building/fire codes. (This paragraph does not require an
increase in the total number of entrances planned for a
facility.)
(iii) An accessible entrance must be provided to each tenancy in
a facility (for example, individual stores in a strip shopping
center).
One entrance may be considered as meeting more than one of the
requirements in (a). Where feasible, accessible entrances shall
be the entrances used by the majority of people visiting or
working in the building.
(b)(i) In addition, if direct access is provided for pedestrians
from an enclosed parking garage to the building, at least one
direct entrance from the garage to the building must be
accessible.
(ii) If access is provided for pedestrians from a pedestrian
tunnel or elevated walkway, one entrance to the building from
each tunnel or walkway must be accessible.
One entrance may be considered as meeting more than one of the
requirements in (b).
Because entrances also serve as emergency exits whose proximity
to all parts of buildings and facilities is essential, it is
preferable that all entrances be accessible.
(c) If the only entrance to a building, or tenancy in a
facility, is a service entrance, that entrance shall be
accessible.
(d) Entrances which are not accessible shall have directional
signage complying with 4.30.1, 4.30.2, 4.30.3, and 4.30.5, which
indicates the location of the nearest accessible entrance.
(9)* In buildings or facilities, or portions of buildings or
facilities, required to be accessible, accessible means of
egress shall be provided in the same number as required for
exits by local building/life safety regulations. Where a
required exit from an occupiable level above or below a level of
accessible exit discharge is not accessible, an area of rescue
assistance shall be provided on each such level (in a number
equal to that of inaccessible required exits). Areas of rescue
assistance shall comply with 4.3.11. A horizontal exit, meeting
the requirements of local building/life safety regulations,
shall satisfy the requirement for an area of rescue assistance.
EXCEPTION: Areas of rescue assistance are not required in
buildings or facilities having a supervised automatic sprinkler
system.
(10)* Drinking Fountains:
(a) Where only one drinking fountain is provided on a floor
there shall be a drinking fountain which is accessible to
individuals who use wheelchairs in accordance with 4.15 and one
accessible to those who have difficulty bending or stooping.
(This can be accommodated by the use of a "hi-lo" fountain; by
providing one fountain accessible to those who use wheelchairs
and one fountain at a standard height convenient for those who
have difficulty bending; by providing a fountain accessible
under 4.15 and a water cooler; or by such other means as would
achieve the required accessibility for each group on each
floor.)
(b) Where more than one drinking fountain or water cooler is
provided on a floor, 50% of those provided shall comply with
4.15 and shall be on an accessible route.
(11) Toilet Facilities: If toilet rooms are provided, then each
public and common use toilet room shall comply with 4.22. Other
toilet rooms provided for the use of occupants of specific
spaces (i.e., a private toilet room for the occupant of a
private office) shall be adaptable. If bathing rooms are
provided, then each public and common use bathroom shall comply
with 4.23. Accessible toilet rooms and bathing facilities shall
be on an accessible route.
(12) Storage, Shelving and Display Units:
(a) If fixed or built-in storage facilities such as cabinets,
shelves, closets, and drawers are provided in accessible spaces,
at least one of each type provided shall contain storage space
complying with 4.25. Additional storage may be provided outside
of the dimensions required by 4.25.
(b) Shelves or display units allowing self-service by customers
in mercantile occupancies shall be located on an accessible
route complying with 4.3. Requirements for accessible reach
range do not apply.
(13) Controls and operating mechanisms in accessible spaces,
along accessible routes, or as parts of accessible elements (for
example, light switches and dispenser controls) shall comply
with 4.27.
(14) If emergency warning systems are provided, then they shall
include both audible alarms and visual alarms complying with
4.28. Sleeping accommodations required to comply with 9.3 shall
have an alarm system complying with 4.28. Emergency warning
systems in medical care facilities may be modified to suit
standard health care alarm design practice.
(15) Detectable warnings shall be provided at locations as
specified in 4.29.
(16) Building Signage:
(a) Signs which designate permanent rooms and spaces shall
comply with 4.30.1, 4.30.4, 4.30.5 and 4.30.6.
(b) Other signs which provide direction to or information about
functional spaces of the building shall comply with 4.30.1,
4.30.2, 4.30.3, and 4.30.5.
EXCEPTION: Building directories, menus, and all other signs
which are temporary are not required to comply.
(17) Public telephones:
(a) If public pay telephones, public closed circuit telephones,
or other public telephones are provided, then they shall comply
with 4.31.2 through 4.31.8 to the extent required by the
following table:
Number of each type of
telephone provided on each floor Number of telephones required
to comply with 4.31.2 through 4.31.81
1 or more single unit
1 per floor
1 bank2
1 per floor
2 or more banks2
1 per bank. Accessible unit may be installed as a single unit in
proximity (either visible or with signage) to the bank. At least
one public telephone per floor shall meet the requirements for a
forward reach telephone3.
1 Additional public telephones may be installed at any height.
Unless otherwise specified, accessible telephones may be either
forward or side reach telephones.
2 A bank consists of two or more adjacent public telephones,
often installed as a unit.
3 EXCEPTION: For exterior installations only, if dial tone first
service is available, then a side reach telephone may be
installed instead of the required forward reach telephone (i.e.,
one telephone in proximity to each bank shall comply with 4.31).
(b)* All telephones required to be accessible and complying with
4.31.2 through 4.31.8 shall be equipped with a volume control.
In addition, 25 percent, but never less than one, of all other
public telephones provided shall be equipped with a volume
control and shall be dispersed among all types of public
telephones, including closed circuit telephones, throughout the
building or facility. Signage complying with applicable
provisions of 4.30.7 shall be provided.
(c) The following shall be provided in accordance with 4.31.9:
(i) if a total number of four or more public pay telephones
(including both interior and exterior phones) is provided at a
site, and at least one is in an interior location, then at least
one interior public text telephone shall be provided.
(ii) if an interior public pay telephone is provided in a
stadium or arena, in a convention center, in a hotel with a
convention center, or in a covered mall, at least one interior
public text telephone shall be provided in the facility.
(iii) if a public pay telephone is located in or adjacent to a
hospital emergency room, hospital recovery room, or hospital
waiting room, one public text telephone shall be provided at
each such location.
(d) Where a bank of telephones in the interior of a building
consists of three or more public pay telephones, at least one
public pay telephone in each such bank shall be equipped with a
shelf and outlet in compliance with 4.31.9(2).
(18) If fixed or built-in seating or tables (including, but not
limited to, study carrels and student laboratory stations), are
provided in accessible public or common use areas, at least five
percent (5%), but not less than one, of the fixed or built-in
seating areas or tables shall comply with 4.32. An accessible
route shall lead to and through such fixed or built-in seating
areas, or tables.
(19)* Assembly areas:
(a) In places of assembly with fixed seating accessible
wheelchair locations shall comply with 4.33.2, 4.33.3, and
4.33.4 and shall be provided consistent with the following
table:
Capacity of Seating
in Assembly Areas Number of Required
Wheelchair Locations
4 to 25
26 to 50
51 to 300
301 to 500
1
2
4
6
over 500 6, plus 1 additional space for each total
seating capacity increase of 100
In addition, one percent, but not less than one, of all fixed
seats shall be aisle seats with no armrests on the aisle side,
or removable or folding armrests on the aisle side. Each such
seat shall be identified by a sign or marker. Signage notifying
patrons of the availability of such seats shall be posted at the
ticket office. Aisle seats are not required to comply with
4.33.4.
(b) This paragraph applies to assembly areas where audible
communications are integral to the use of the space (e.g.,
concert and lecture halls, playhouses and movie theaters,
meeting rooms, etc.). Such assembly areas, if (1) they
accommodate at least 50 persons, or if they have
audio-amplification systems, and (2) they have fixed seating,
shall have a permanently installed assistive listening system
complying with 4.33. For other assembly areas, a permanently
installed assistive listening system, or an adequate number of
electrical outlets or other supplementary wiring necessary to
support a portable assistive listening system shall be provided.
The minimum number of receivers to be provided shall be equal to
4 percent of the total number of seats, but in no case less than
two. Signage complying with applicable provisions of 4.30 shall
be installed to notify patrons of the availability of a
listening system.
(20) Where automated teller machines (ATMs) are provided, each
ATM shall comply with the requirements of 4.34 except where two
or more are provided at a location, then only one must comply.
EXCEPTION: Drive-up-only automated teller machines are not
required to comply with 4.27.2, 4.27.3 and 4.34.3.
(21) Where dressing and fitting rooms are provided for use by
the general public, patients, customers or employees, 5 percent,
but never less than one, of dressing rooms for each type of use
in each cluster of dressing rooms shall be accessible and shall
comply with 4.35.
Examples of types of dressing rooms are those serving different
genders or distinct and different functions as in different
treatment or examination facilities.
4.1.4 (Reserved).
4.1.5 Accessible Buildings: Additions. Each addition to an
existing building or facility shall be regarded as an
alteration. Each space or element added to the existing building
or facility shall comply with the applicable provisions of 4.1.1
to 4.1.3, Minimum Requirements (for New Construction) and the
applicable technical specifications of 4.2 through 4.35 and
sections 5 through 10. Each addition that affects or could
affect the usability of an area containing a primary function
shall comply with 4.1.6(2).
4.1.6 Accessible Buildings: Alterations.
(1) General. Alterations to existing buildings and facilities
shall comply with the following:
(a) No alteration shall be undertaken which decreases or has the
effect of decreasing accessibility or usability of a building or
facility below the requirements for new construction at the time
of alteration.
(b) If existing elements, spaces, or common areas are altered,
then each such altered element, space, feature, or area shall
comply with the applicable provisions of 4.1.1 to 4.1.3 Minimum
Requirements (for New Construction). If the applicable provision
for new construction requires that an element, space, or common
area be on an accessible route, the altered element, space, or
common area is not required to be on an accessible route except
as provided in 4.1.6(2) (Alterations to an Area Containing a
Primary Function.)
(c) If alterations of single elements, when considered together,
amount to an alteration of a room or space in a building or
facility, the entire space shall be made accessible.
(d) No alteration of an existing element, space, or area of a
building or facility shall impose a requirement for greater
accessibility than that which would be required for new
construction. For example, if the elevators and stairs in a
building are being altered and the elevators are, in turn, being
made accessible, then no accessibility modifications are
required to the stairs connecting levels connected by the
elevator. If stair modifications to correct unsafe conditions
are required by other codes, the modifications shall be done in
compliance with these guidelines unless technically infeasible.
(e) At least one interior public text telephone complying with
4.31.9 shall be provided if:
(i) alterations to existing buildings or facilities with less
than four exterior or interior public pay telephones would
increase the total number to four or more telephones with at
least one in an interior location; or
(ii) alterations to one or more exterior or interior public pay
telephones occur in an existing building or facility with four
or more public telephones with at least one in an interior
location.
(f) If an escalator or stair is planned or installed where none
existed previously and major structural modifications are
necessary for such installation, then a means of accessible
vertical access shall be provided that complies with the
applicable provisions of 4.7, 4.8, 4.10, or 4.11.
(g) In alterations, the requirements of 4.1.3(9), 4.3.10 and
4.3.11 do not apply.
(h)* Entrances: If a planned alteration entails alterations to
an entrance, and the building has an accessible entrance, the
entrance being altered is not required to comply with 4.1.3(8),
except to the extent required by 4.1.6(2). If a particular
entrance is not made accessible, appropriate accessible signage
indicating the location of the nearest accessible entrance(s)
shall be installed at or near the inaccessible entrance, such
that a person with disabilities will not be required to retrace
the approach route from the inaccessible entrance.
(i) If the alteration work is limited solely to the electrical,
mechanical, or plumbing system, or to hazardous material
abatement, or automatic sprinkler retrofitting, and does not
involve the alteration of any elements or spaces required to be
accessible under these guidelines, then 4.1.6(2) does not apply.
(j) EXCEPTION: In alteration work, if compliance with 4.1.6 is
technically infeasible, the alteration shall provide
accessibility to the maximum extent feasible. Any elements or
features of the building or facility that are being altered and
can be made accessible shall be made accessible within the scope
of the alteration.
Technically Infeasible. Means, with respect to an alteration of
a building or a facility, that it has little likelihood of being
accomplished because existing structural conditions would
require removing or altering a load-bearing member which is an
essential part of the structural frame; or because other
existing physical or site constraints prohibit modification or
addition of elements, spaces, or features which are in full and
strict compliance with the minimum requirements for new
construction and which are necessary to provide accessibility.
(k) EXCEPTION:
(i) These guidelines do not require the installation of an
elevator in an altered facility that is less than three stories
or has less than 3,000 square feet per story unless the building
is a shopping center, a shopping mall, the professional office
of a health care provider, or another type of facility as
determined by the Attorney General.
(ii) The exemption provided in paragraph (i) does not obviate or
limit in any way the obligation to comply with the other
accessibility requirements established in these guidelines. For
example, alterations to floors above or below the ground floor
must be accessible regardless of whether the altered facility
has an elevator. If a facility subject to the elevator exemption
set forth in paragraph (i) nonetheless has a full passenger
elevator, that elevator shall meet, to the maximum extent
feasible, the accessibility requirements of these guidelines.
(2) Alterations to an Area Containing a Primary Function: In
addition to the requirements of 4.1.6(1), an alteration that
affects or could affect the usability of or access to an area
containing a primary function shall be made so as to ensure
that, to the maximum extent feasible, the path of travel to the
altered area and the restrooms, telephones, and drinking
fountains serving the altered area, are readily accessible to
and usable by individuals with disabilities, unless such
alterations are disproportionate to the overall alterations in
terms of cost and scope (as determined under criteria
established by the Attorney General).
(3) Special Technical Provisions for Alterations to Existing
Buildings and Facilities:
(a) Ramps: Curb ramps and interior or exterior ramps to be
constructed on sites or in existing buildings or facilities
where space limitations prohibit the use of a 1:12 slope or less
may have slopes and rises as follows:
(i) A slope between 1:10 and 1:12 is allowed for a maximum rise
of 6 inches.
(ii) A slope between 1:8 and 1:10 is allowed for a maximum rise
of 3 inches. A slope steeper than 1:8 is not allowed.
(b) Stairs: Full extension of handrails at stairs shall not be
required in alterations where such extensions would be hazardous
or impossible due to plan configuration.
(c) Elevators:
(i) If safety door edges are provided in existing automatic
elevators, automatic door reopening devices may be omitted (see
4.10.6).
(ii) Where existing shaft configuration or technical
infeasibility prohibits strict compliance with 4.10.9, the
minimum car plan dimensions may be reduced by the minimum amount
necessary, but in no case shall the inside car area be smaller
than 48 in by 48 in.
(iii) Equivalent facilitation may be provided with an elevator
car of different dimensions when usability can be demonstrated
and when all other elements required to be accessible comply
with the applicable provisions of 4.10. For example, an elevator
of 47 in by 69 in (1195 mm by 1755 mm) with a door opening on
the narrow dimension, could accommodate the standard wheelchair
clearances shown in Figure 4.
(d) Doors:
(i) Where it is technically infeasible to comply with clear
opening width requirements of 4.13.5, a projection of 5/8 in
maximum will be permitted for the latch side stop.
(ii) If existing thresholds are 3/4 in high or less, and have
(or are modified to have) a beveled edge on each side, they may
remain.
(e) Toilet Rooms:
(i) Where it is technically infeasible to comply with 4.22 or
4.23, the installation of at least one unisex toilet/bathroom
per floor, located in the same area as existing toilet
facilities, will be permitted in lieu of modifying existing
toilet facilities to be accessible. Each unisex toilet room
shall contain one water closet complying with 4.16 and one
lavatory complying with 4.19, and the door shall have a privacy
latch.
(ii) Where it is technically infeasible to install a required
standard stall (Fig. 30(a)), or where other codes prohibit
reduction of the fixture count (i.e., removal of a water closet
in order to create a double-wide stall), either alternate stall
(Fig.30(b)) may be provided in lieu of the standard stall.
(iii) When existing toilet or bathing facilities are being
altered and are not made accessible, signage complying with
4.30.1, 4.30.2, 4.30.3, 4.30.5, and 4.30.7 shall be provided
indicating the location of the nearest accessible toilet or
bathing facility within the facility.
(f) Assembly Areas:
(i) Where it is technically infeasible to disperse accessible
seating throughout an altered assembly area, accessible seating
areas may be clustered. Each accessible seating area shall have
provisions for companion seating and shall be located on an
accessible route that also serves as a means of emergency
egress.
(ii) Where it is technically infeasible to alter all performing
areas to be on an accessible route, at least one of each type of
performing area shall be made accessible.
(g) Platform Lifts (Wheelchair Lifts): In alterations, platform
lifts (wheelchair lifts) complying with 4.11 and applicable
state or local codes may be used as part of an accessible route.
The use of lifts is not limited to the four conditions in
exception 4 of 4.1.3(5)
(h) Dressing Rooms: In alterations where technical infeasibility
can be demonstrated, one dressing room for each sex on each
level shall be made accessible. Where only unisex dressing rooms
are provided, accessible unisex dressing rooms may be used to
fulfill this requirement.
4.1.7 Accessible Buildings: Historic Preservation.
(1) Applicability:
(a) General Rule. Alterations to a qualified historic building
or facility shall comply with 4.1.6 Accessible Buildings:
Alterations, the applicable technical specifications of 4.2
through 4.35 and the applicable special application sections 5
through 10 unless it is determined in accordance with the
procedures in 4.1.7(2) that compliance with the requirements for
accessible routes (exterior and interior), ramps, entrances, or
toilets would threaten or destroy the historic significance of
the building or facility in which case the alternative
requirements in 4.1.7(3) may be used for the feature.
EXCEPTION: (Reserved).
(b) Definition. A qualified historic building or facility is a
building or facility that is:
(i) Listed in or eligible for listing in the National Register
of Historic Places; or
(ii) Designated as historic under an appropriate State or local
law.
(2) Procedures:
(a) Alterations to Qualified Historic Buildings and Facilities
Subject to Section 106 of the National Historic Preservation
Act:
(i) Section 106 Process. Section 106 of the National Historic
Preservation Act (16 U.S.C. 470 f) requires that a Federal
agency with jurisdiction over a Federal, federally assisted, or
federally licensed undertaking consider the effects of the
agency's undertaking on buildings and facilities listed in or
eligible for listing in the National Register of Historic Places
and give the Advisory Council on Historic Preservation a
reasonable opportunity to comment on the undertaking prior to
approval of the undertaking.
(ii) ADA Application. Where alterations are undertaken to a
qualified historic building or facility that is subject to
section 106 of the National Historic Preservation Act, the
Federal agency with jurisdiction over the undertaking shall
follow the section 106 process. If the State Historic
Preservation Officer or Advisory Council on Historic
Preservation agrees that compliance with the requirements for
accessible routes (exterior and interior), ramps, entrances, or
toilets would threaten or destroy the historic significance of
the building or facility, the alternative requirements in
4.1.7(3) may be used for the feature.
(b) Alterations to Qualified Historic Buildings and Facilities
Not Subject to Section 106 of the National Historic Preservation
Act. Where alterations are undertaken to a qualified historic
building or facility that is not subject to section 106 of the
National Historic Preservation Act, if the entity undertaking
the alterations believes that compliance with the requirements
for accessible routes (exterior and interior), ramps, entrances,
or toilets would threaten or destroy the historic significance
of the building or facility and that the alternative
requirements in 4.1.7(3) should be used for the feature, the
entity should consult with the State Historic Preservation
Officer. If the State Historic Preservation Officer agrees that
compliance with the accessibility requirements for accessible
routes (exterior and interior), ramps, entrances or toilets
would threaten or destroy the historical significance of the
building or facility, the alternative requirements in 4.1.7(3)
may be used.
(c) Consultation With Interested Persons. Interested persons
should be invited to participate in the consultation process,
including State or local accessibility officials, individuals
with disabilities, and organizations representing individuals
with disabilities.
(d) Certified Local Government Historic Preservation
Programs. Where the State Historic Preservation Officer has
delegated the consultation responsibility for purposes of this
section to a local government historic preservation program that
has been certified in accordance with section 101(c) of the
National Historic Preservation Act of 1966 (16 U.S.C. 470a (c))
and implementing regulations (36 CFR 61.5), the responsibility
may be carried out by the appropriate local government body or
official.
(3) Historic Preservation: Minimum Requirements:
(a) At least one accessible route complying with 4.3 from a site
access point to an accessible entrance shall be provided.
EXCEPTION: A ramp with a slope no greater than 1:6 for a run not
to exceed 2 ft (610 mm) may be used as part of an accessible
route to an entrance.
(b) At least one accessible entrance complying with 4.14 which
is used by the public shall be provided.
EXCEPTION: If it is determined that no entrance used by the
public can comply with 4.14, then access at any entrance not
used by the general public but open (unlocked) with directional
signage at the primary entrance may be used. The accessible
entrance shall also have a notification system. Where security
is a problem, remote monitoring may be used.
(c) If toilets are provided, then at least one toilet facility
complying with 4.22 and 4.1.6 shall be provided along an
accessible route that complies with 4.3. Such toilet facility
may be unisex in design.
(d) Accessible routes from an accessible entrance to all
publicly used spaces on at least the level of the accessible
entrance shall be provided. Access shall be provided to all
levels of a building or facility in compliance with 4.1 whenever
practical.
(e) Displays and written information, documents, etc., should be
located where they can be seen by a seated person. Exhibits and
signage displayed horizontally (e.g., open books), should be no
higher than 44 in (1120 mm) above the floor surface.
NOTE: The technical provisions of sections 4.2 through 4.35 are
the same as those of the American National Standard Institute's
document A117.1-1980, except as noted in the text.
4.2 Space Allowance and Reach Ranges.
4.2.1* Wheelchair Passage Width. The minimum clear width for
single wheelchair passage shall be 32 in (815 mm) at a point and
36 in (915 mm) continuously (see Fig. 1 and 24(e)).
4.2.2 Width for Wheelchair Passing. The minimum width for two
wheelchairs to pass is 60 in (1525 mm) (see Fig. 2).
4.2.3* Wheelchair Turning Space. The space required for a
wheelchair to make a 180-degree turn is a clear space of 60 in
(1525 mm) diameter (see Fig. 3(a)) or a T-shaped space (see Fig.
3(b)).
4.2.4* Clear Floor or Ground Space for Wheelchairs.
4.2.4.1 Size and Approach. The minimum clear floor or ground
space required to accommodate a single, stationary wheelchair
and occupant is 30 in by 48 in (760 mm by 1220 mm) (see Fig. 4,
see Fig. 4(a)). The minimum clear floor or ground space for
wheelchairs may be positioned for forward or parallel approach
to an object (see Fig. 4(b) and Fig.4(c)). Clear floor or ground
space for wheelchairs may be part of the knee space required
under some objects.
4.2.4.2 Relationship of Maneuvering Clearance to Wheelchair
Spaces. One full unobstructed side of the clear floor or ground
space for a wheelchair shall adjoin or overlap an accessible
route or adjoin another wheelchair clear floor space. If a clear
floor space is located in an alcove or otherwise confined on all
or part of three sides, additional maneuvering clearances shall
be provided as shown in Fig. 4(d) and Fig. 4(e).
4.2.4.3 Surfaces for Wheelchair Spaces. Clear floor or ground
spaces for wheelchairs shall comply with 4.5.
4.2.5* Forward Reach. If the clear floor space only allows
forward approach to an object, the maximum high forward reach
allowed shall be 48 in (1220 mm) (see Fig. 5 and Fig. 5(a)). The
minimum low forward reach is 15 in (380 mm). If the high forward
reach is over an obstruction, reach and clearances shall be as
shown in Fig. 5(b).
4.2.6* Side Reach. If the clear floor space allows parallel
approach by a person in a wheelchair, the maximum high side
reach allowed shall be 54 in (1370 mm) and the low side reach
shall be no less than 9 in (230 mm) above the floor (Fig 6, Fig.
6(a) and Fig (b)). If the side reach is over an obstruction, the
reach and clearances shall be as shown in Fig 6(c).
4.3 Accessible Route.
4.3.1* General. All walks, halls, corridors, aisles, skywalks,
tunnels, and other spaces that are part of an accessible route
shall comply with 4.3.
4.3.2 Location.
(1) At least one accessible route within the boundary of the
site shall be provided from public transportation stops,
accessible parking, and accessible passenger loading zones, and
public streets or sidewalks to the accessible building entrance
they serve. The accessible route shall, to the maximum extent
feasible, coincide with the route for the general public.
(2) At least one accessible route shall connect accessible
buildings, facilities, elements, and spaces that are on the same
site.
(3) At least one accessible route shall connect accessible
building or facility entrances with all accessible spaces and
elements and with all accessible dwelling units within the
building or facility.
(4) An accessible route shall connect at least one accessible
entrance of each accessible dwelling unit with those exterior
and interior spaces and facilities that serve the accessible
dwelling unit.
4.3.3 Width. The minimum clear width of an accessible route
shall be 36 in (915 mm) except at doors (see 4.13.5 and 4.13.6).
If a person in a wheelchair must make a turn around an
obstruction, the minimum clear width of the accessible route
shall be as shown in Fig. 7, Fig. 7(a) and Fig 7(b).
4.3.4 Passing Space. If an accessible route has less than 60 in
(1525 mm) clear width, then passing spaces at least 60 in by 60
in (1525 mm by 1525 mm) shall be located at reasonable intervals
not to exceed 200 ft (61 m). A T-intersection of two corridors
or walks is an acceptable passing place.
4.3.5 Head Room. Accessible routes shall comply with 4.4.2.
4.3.6 Surface Textures. The surface of an accessible route shall
comply with 4.5.
4.3.7 Slope. An accessible route with a running slope greater
than 1:20 is a ramp and shall comply with 4.8. Nowhere shall the
cross slope of an accessible route exceed 1:50.
4.3.8 Changes in Levels. Changes in levels along an accessible
route shall comply with 4.5.2. If an accessible route has
changes in level greater than 1/2 in (13 mm), then a curb ramp,
ramp, elevator, or platform lift (as permitted in 4.1.3 and
4.1.6) shall be provided that complies with 4.7, 4.8, 4.10, or
4.11, respectively. An accessible route does not include stairs,
steps, or escalators. See definition of "egress, means of" in
3.5.
4.3.9 Doors. Doors along an accessible route shall comply with
4.13.
4.3.10* Egress. Accessible routes serving any accessible space
or element shall also serve as a means of egress for emergencies
or connect to an accessible area of rescue assistance.
4.3.11 Areas of Rescue Assistance.
4.3.11.1 Location and Construction. An area of rescue assistance
shall be one of the following:
(1) A portion of a stairway landing within a smokeproof
enclosure (complying with local requirements).
(2) A portion of an exterior exit balcony located immediately
adjacent to an exit stairway when the balcony complies with
local requirements for exterior exit balconies. Openings to the
interior of the building located within 20 feet (6 m) of the
area of rescue assistance shall be protected with fire
assemblies having a three-fourths hour fire protection rating.
(3) A portion of a one-hour fire-resistive corridor (complying
with local requirements for fire-resistive construction and for
openings) located immediately adjacent to an exit enclosure.
(4) A vestibule located immediately adjacent to an exit
enclosure and constructed to the same fire-resistive standards
as required for corridors and openings.
(5) A portion of a stairway landing within an exit enclosure
which is vented to the exterior and is separated from the
interior of the building with not less than one-hour
fire-resistive doors.
(6) When approved by the appropriate local authority, an area or
a room which is separated from other portions of the building by
a smoke barrier. Smoke barriers shall have a fire-resistive
rating of not less than one hour and shall completely enclose
the area or room. Doors in the smoke barrier shall be
tight-fitting smoke- and draft-control assemblies having a
fire-protection rating of not less than 20 minutes and shall be
self-closing or automatic closing. The area or room shall be
provided with an exit directly to an exit enclosure. Where the
room or area exits into an exit enclosure which is required to
be of more than one-hour fire-resistive construction, the room
or area shall have the same fire-resistive construction,
including the same opening protection, as required for the
adjacent exit enclosure.
(7) An elevator lobby when elevator shafts and adjacent lobbies
are pressurized as required for smokeproof enclosures by local
regulations and when complying with requirements herein for
size, communication, and signage. Such pressurization system
shall be activated by smoke detectors on each floor located in a
manner approved by the appropriate local authority.
Pressurization equipment and its duct work within the building
shall be separated from other portions of the building by a
minimum two-hour fire-resistive construction.
4.3.11.2 Size. Each area of rescue assistance shall provide at
least two accessible areas each being not less than 30 inches by
48 inches (760 mm by 1220 mm). The area of rescue assistance
shall not encroach on any required exit width. The total number
of such 30-inch by 48-inch (760 mm by 1220 mm) areas per story
shall be not less than one for every 200 persons of calculated
occupant load served by the area of rescue assistance.
EXCEPTION: The appropriate local authority may reduce the
minimum number of 30-inch by 48-inch (760 mm by 1220 mm) areas
to one for each area of rescue assistance on floors where the
occupant load is less than 200.
4.3.11.3* Stairway Width. Each stairway adjacent to an area of
rescue assistance shall have a minimum clear width of 48 inches
between handrails.
4.3.11.4* Two-way Communication. A method of two-way
communication, with both visible and audible signals, shall be
provided between each area of rescue assistance and the primary
entry. The fire department or appropriate local authority may
approve a location other than the primary entry.
4.3.11.5 Identification. Each area of rescue assistance shall be
identified by a sign which states "AREA OF RESCUE ASSISTANCE"
and displays the international symbol of accessibility. The sign
shall be illuminated when exit sign illumination is required.
Signage shall also be installed at all inaccessible exits and
where otherwise necessary to clearly indicate the direction to
areas of rescue assistance. In each area of rescue assistance,
instructions on the use of the area under emergency conditions
shall be posted adjoining the two-way communication system.
4.4 Protruding Objects.
4.4.1* General. Objects projecting from walls (for example,
telephones) with their leading edges between 27 in and 80 in
(685 mm and 2030 mm) above the finished floor shall protrude no
more than 4 in (100 mm) into walks, halls, corridors,
passageways, or aisles (see Fig. 8(a)). Objects mounted with
their leading edges at or below 27 in (685 mm) above the
finished floor may protrude any amount (see Fig. 8(a) and (b)).
Free-standing objects mounted on posts or pylons may overhang 12
in (305 mm) maximum from 27 in to 80 in (685 mm to 2030 mm)
above the ground or finished floor (see Fig. 8(c) and (d)).
Protruding objects shall not reduce the clear width of an
accessible route or maneuvering space (see Fig. 8(e)).
4.4.2 Head Room. Walks, halls, corridors, passageways, aisles,
or other circulation spaces shall have 80 in (2030 mm) minimum
clear head room (see Fig. 8(a)). If vertical clearance of an
area adjoining an accessible route is reduced to less than 80 in
(nominal dimension), a barrier to warn blind or
visually-impaired persons shall be provided (see Fig. 8(c-1)).
4.5 Ground and Floor Surfaces.
4.5.1* General. Ground and floor surfaces along accessible
routes and in accessible rooms and spaces including floors,
walks, ramps, stairs, and curb ramps, shall be stable, firm,
slip-resistant, and shall comply with 4.5.
4.5.2 Changes in Level. Changes in level up to 1/4 in (6 mm) may
be vertical and without edge treatment (see Fig. 7(c) ). Changes
in level between 1/4 in and 1/2 in (6 mm and 13 mm) shall be
beveled with a slope no greater than 1:2 (see Fig. 7(d) ).
Changes in level greater than 1/2 in (13 mm) shall be
accomplished by means of a ramp that complies with 4.7 or 4.8.
4.5.3* Carpet. If carpet or carpet tile is used on a ground or
floor surface, then it shall be securely attached; have a firm
cushion, pad, or backing, or no cushion or pad; and have a level
loop, textured loop, level cut pile, or level cut/uncut pile
texture. The maximum pile thickness shall be 1/2 in (13 mm) (see
Fig. 8(f)). Exposed edges of carpet shall be fastened to floor
surfaces and have trim along the entire length of the exposed
edge. Carpet edge trim shall comply with 4.5.2.
4.5.4 Gratings. If gratings are located in walking surfaces,
then they shall have spaces no greater than 1/2 in (13 mm) wide
in one direction (see Fig. 8(g)). If gratings have elongated
openings, then they shall be placed so that the long dimension
is perpendicular to the dominant direction of travel (see Fig.
8(h)).
4.6 Parking and Passenger Loading Zones.
4.6.1 Minimum Number. Parking spaces required to be accessible
by 4.1 shall comply with 4.6.2 through 4.6.5. Passenger loading
zones required to be accessible by 4.1 shall comply with 4.6.5
and 4.6.6.
4.6.2 Location. Accessible parking spaces serving a particular
building shall be located on the shortest accessible route of
travel from adjacent parking to an accessible entrance. In
parking facilities that do not serve a particular building,
accessible parking shall be located on the shortest accessible
route of travel to an accessible pedestrian entrance of the
parking facility. In buildings with multiple accessible
entrances with adjacent parking, accessible parking spaces shall
be dispersed and located closest to the accessible entrances.
4.6.3* Parking Spaces. Accessible parking spaces shall be at
least 96 in (2440 mm) wide. Parking access aisles shall be part
of an accessible route to the building or facility entrance and
shall comply with 4.3. Two accessible parking spaces may share a
common access aisle (see Fig. 9). Parked vehicle overhangs shall
not reduce the clear width of an accessible route. Parking
spaces and access aisles shall be level with surface slopes not
exceeding 1:50 (2%) in all directions.
4.6.4* Signage. Accessible parking spaces shall be designated as
reserved by a sign showing the symbol of accessibility (see
4.30.7). Spaces complying with 4.1.2(5)(b) shall have an
additional sign "Van-Accessible" mounted below the symbol of
accessibility. Such signs shall be located so they cannot be
obscured by a vehicle parked in the space.
4.6.5* Vertical Clearance. Provide minimum vertical clearance of
114 in (2895 mm) at accessible passenger loading zones and along
at least one vehicle access route to such areas from site
entrance(s) and exit(s). At parking spaces complying with
4.1.2(5)(b), provide minimum vertical clearance of 98 in (2490
mm) at the parking space and along at least one vehicle access
route to such spaces from site entrance(s) and exit(s).
4.6.6 Passenger Loading Zones. Passenger loading zones shall
provide an access aisle at least 60 in (1525 mm) wide and 20 ft
(240 in)(6100 mm) long adjacent and parallel to the vehicle
pull-up space (see Fig. 10). If there are curbs between the
access aisle and the vehicle pull-up space, then a curb ramp
complying with 4.7 shall be provided. Vehicle standing spaces
and access aisles shall be level with surface slopes not
exceeding 1:50 (2%) in all directions.
4.7 Curb Ramps.
4.7.1 Location. Curb ramps complying with 4.7 shall be provided
wherever an accessible route crosses a curb.
4.7.2 Slope. Slopes of curb ramps shall comply with 4.8.2. The
slope shall be measured as shown in Fig. 11. Transitions from
ramps to walks, gutters, or streets shall be flush and free of
abrupt changes. Maximum slopes of adjoining gutters, road
surface immediately adjacent to the curb ramp, or accessible
route shall not exceed 1:20.
4.7.3 Width. The minimum width of a curb ramp shall be 36 in
(915 mm), exclusive of flared sides.
4.7.4 Surface. Surfaces of curb ramps shall comply with 4.5.
4.7.5 Sides of Curb Ramps. If a curb ramp is located where
pedestrians must walk across the ramp, or where it is not
protected by handrails or guardrails, it shall have flared
sides; the maximum slope of the flare shall be 1:10 (see Fig.
12(a)). Curb ramps with returned curbs may be used where
pedestrians would not normally walk across the ramp (see Fig.
12(b)).
4.7.6 Built-up Curb Ramps. Built-up curb ramps shall be located
so that they do not project into vehicular traffic lanes (see
Fig. 13).
4.7.7 Detectable Warnings. A curb ramp shall have a detectable
warning complying with 4.29.2. The detectable warning shall
extend the full width and depth of the curb ramp.
4.7.8 Obstructions. Curb ramps shall be located or protected to
prevent their obstruction by parked vehicles.
4.7.9 Location at Marked Crossings. Curb ramps at marked
crossings shall be wholly contained within the markings,
excluding any flared sides (see Fig. 15).
4.7.10 Diagonal Curb Ramps. If diagonal (or corner type) curb
ramps have returned curbs or other well-defined edges, such
edges shall be parallel to the direction of pedestrian flow. The
bottom of diagonal curb ramps shall have 48 in (1220 mm) minimum
clear space as shown in Fig. 15(c) and (d). If diagonal curb
ramps are provided at marked crossings, the 48 in (1220 mm)
clear space shall be within the markings (see Fig. 15(c) and
(d)). If diagonal curb ramps have flared sides, they shall also
have at least a 24 in (610 mm) long segment of straight curb
located on each side of the curb ramp and within the marked
crossing (see Fig. 15(c)).
4.7.11 Islands. Any raised islands in crossings shall be cut
through level with the street or have curb ramps at both sides
and a level area at least 48 in (1220 mm) long between the curb
ramps in the part of the island intersected by the crossings
(see Fig. 15(a) and (b)).
4.8 Ramps.
4.8.1* General. Any part of an accessible route with a slope
greater than 1:20 shall be considered a ramp and shall comply
with 4.8.
4.8.2* Slope and Rise. The least possible slope shall be used
for any ramp. The maximum slope of a ramp in new construction
shall be 1:12. The maximum rise for any run shall be 30 in (760
mm) (see Fig. 16). Curb ramps and ramps to be constructed on
existing sites or in existing buildings or facilities may have
slopes and rises as allowed in 4.1.6(3)(a) if space limitations
prohibit the use of a 1:12 slope or less.
4.8.3 Clear Width. The minimum clear width of a ramp shall be 36
in (915 mm).
4.8.4* Landings. Ramps shall have level landings at bottom and
top of each ramp and each ramp run. Landings shall have the
following features:
(1) The landing shall be at least as wide as the ramp run
leading to it.
(2) The landing length shall be a minimum of 60 in (1525 mm)
clear.
(3) If ramps change direction at landings, the minimum landing
size shall be 60 in by 60 in (1525 mm by 1525 mm).
(4) If a doorway is located at a landing, then the area in front
of the doorway shall comply with 4.13.6.
4.8.5* Handrails. If a ramp run has a rise greater than 6 in
(150 mm) or a horizontal projection greater than 72 in (1830
mm), then it shall have handrails on both sides. Handrails are
not required on curb ramps or adjacent to seating in assembly
areas. Handrails shall comply with 4.26 and shall have the
following features:
(1) Handrails shall be provided along both sides of ramp
segments. The inside handrail on switchback or dogleg ramps
shall always be continuous.
(2) If handrails are not continuous, they shall extend at least
12 in (305 mm) beyond the top and bottom of the ramp segment and
shall be parallel with the floor or ground surface (see Fig.
17).
(3) The clear space between the handrail and the wall shall be 1
- 1/2 in (38 mm).
(4) Gripping surfaces shall be continuous.
(5) Top of handrail gripping surfaces shall be mounted between
34 in and 38 in (865 mm and 965 mm) above ramp surfaces.
(6) Ends of handrails shall be either rounded or returned
smoothly to floor, wall, or post.
(7) Handrails shall not rotate within their fittings.
4.8.6 Cross Slope and Surfaces. The cross slope of ramp surfaces
shall be no greater than 1:50. Ramp surfaces shall comply with
4.5.
4.8.7 Edge Protection. Ramps and landings with drop-offs shall
have curbs, walls, railings, or projecting surfaces that prevent
people from slipping off the ramp. Curbs shall be a minimum of 2
in (50 mm) high (see Fig. 17).
4.8.8 Outdoor Conditions. Outdoor ramps and their approaches
shall be designed so that water will not accumulate on walking
surfaces.
4.9 Stairs.
4.9.1* Minimum Number. Stairs required to be accessible by 4.1
shall comply with 4.9.
4.9.2 Treads and Risers. On any given flight of stairs, all
steps shall have uniform riser heights and uniform tread widths.
Stair treads shall be no less than 11 in (280 mm) wide, measured
from riser to riser (see Fig. 18(a)). Open risers are not
permitted.
4.9.3 Nosings. The undersides of nosings shall not be abrupt.
The radius of curvature at the leading edge of the tread shall
be no greater than 1/2 in (13 mm). Risers shall be sloped or the
underside of the nosing shall have an angle not less than 60
degrees from the horizontal. Nosings shall project no more than
1-1/2 in (38 mm) (see Fig. 18).
4.9.4 Handrails. Stairways shall have handrails at both sides of
all stairs. Handrails shall comply with 4.26 and shall have the
following features:
(1) Handrails shall be continuous along both sides of stairs.
The inside handrail on switchback or dogleg stairs shall always
be continuous (see Fig. 19(a) and (b)).
(2) If handrails are not continuous, they shall extend at least
12 in (305 mm) beyond the top riser and at least 12 in (305 mm)
plus the width of one tread beyond the bottom riser. At the top,
the extension shall be parallel with the floor or ground
surface. At the bottom, the handrail shall continue to slope for
a distance of the width of one tread from the bottom riser; the
remainder of the extension shall be horizontal (see Fig. 19(c)
and (d)). Handrail extensions shall comply with 4.4.
(3) The clear space between handrails and wall shall be 1-1/2 in
(38 mm).
(4) Gripping surfaces shall be uninterrupted by newel posts,
other construction elements, or obstructions.
(5) Top of handrail gripping surface shall be mounted between 34
in and 38 in (865 mm and 965 mm) above stair nosings.
(6) Ends of handrails shall be either rounded or returned
smoothly to floor, wall or post.
(7) Handrails shall not rotate within their fittings.
4.9.5 Detectable Warnings at Stairs. (Reserved).
4.9.6 Outdoor Conditions. Outdoor stairs and their approaches
shall be designed so that water will not accumulate on walking
surfaces.
4.10 Elevators.
4.10.1 General. Accessible elevators shall be on an accessible
route and shall comply with 4.10 and with the ASME A17.1-1990,
Safety Code for Elevators and Escalators. Freight elevators
shall not be considered as meeting the requirements of this
section unless the only elevators provided are used as
combination passenger and freight elevators for the public and
employees.
4.10.2 Automatic Operation. Elevator operation shall be
automatic. Each car shall be equipped with a self-leveling
feature that will automatically bring the car to floor landings
within a tolerance of 1/2 in (13 mm) under rated loading to zero
loading conditions. This self-leveling feature shall be
automatic and independent of the operating device and shall
correct the overtravel or undertravel.
4.10.3 Hall Call Buttons. Call buttons in elevator lobbies and
halls shall be centered at 42 in (1065 mm) above the floor. Such
call buttons shall have visual signals to indicate when each
call is registered and when each call is answered. Call buttons
shall be a minimum of 3/4 in (19 mm) in the smallest dimension.
The button designating the up direction shall be on top. (See
Fig. 20.) Buttons shall be raised or flush. Objects mounted
beneath hall call buttons shall not project into the elevator
lobby more than 4 in (100 mm).
4.10.4 Hall Lanterns. A visible and audible signal shall be
provided at each hoistway entrance to indicate which car is
answering a call. Audible signals shall sound once for the up
direction and twice for the down direction or shall have verbal
annunciators that say "up" or "down." Visible signals shall have
the following features:
(1) Hall lantern fixtures shall be mounted so that their
centerline is at least 72 in (1830 mm) above the lobby floor.
(See Fig. 20.)
(2) Visual elements shall be at least 2-1/2 in (64 mm) in the
smallest dimension.
(3) Signals shall be visible from the vicinity of the hall call
button (see Fig. 20). In-car lanterns located in cars, visible
from the vicinity of hall call buttons, and conforming to the
above requirements, shall be acceptable.
4.10.5 Raised and Braille Characters on Hoistway Entrances. All
elevator hoistway entrances shall have raised and Braille floor
designations provided on both jambs. The centerline of the
characters shall be 60 in (1525 mm) above finish floor. Such
characters shall be 2 in (50 mm) high and shall comply with
4.30.4. Permanently applied plates are acceptable if they are
permanently fixed to the jambs. (See Fig. 20.)
4.10.6* Door Protective and Reopening Device. Elevator doors
shall open and close automatically. They shall be provided with
a reopening device that will stop and reopen a car door and
hoistway door automatically if the door becomes obstructed by an
object or person. The device shall be capable of completing
these operations without requiring contact for an obstruction
passing through the opening at heights of 5 in and 29 in (125 mm
and 735 mm) above finish floor (See Fig. 20). Door reopening
devices shall remain effective for at least 20 seconds. After
such an interval, doors may close in accordance with the
requirements of ASME A17.1-1990.
4.10.7* Door and Signal Timing for Hall Calls. The minimum
acceptable time from notification that a car is answering a call
until the doors of that car start to close shall be calculated
from the following equation:
T = D/(1.5 ft/s) or T = D/(445 mm/s)
where T total time in seconds and D distance (in feet or
millimeters) from a point in the lobby or corridor 60 in (1525
mm) directly in front of the farthest call button controlling
that car to the centerline of its hoistway door (see Fig. 21).
For cars with in-car lanterns, T begins when the lantern is
visible from the vicinity of hall call buttons and an audible
signal is sounded. The minimum acceptable notification time
shall be 5 seconds.
4.10.8 Door Delay for Car Calls. The minimum time for elevator
doors to remain fully open in response to a car call shall be 3
seconds.
4.10.9 Floor Plan of Elevator Cars. The floor area of elevator
cars shall provide space for wheelchair users to enter the car,
maneuver within reach of controls, and exit from the car.
Acceptable door opening and inside dimensions shall be as shown
in Fig. 22. The clearance between the car platform sill and the
edge of any hoistway landing shall be no greater than 1-1/4 in
(32 mm).
4.10.10 Floor Surfaces. Floor surfaces shall comply with 4.5.
4.10.11 Illumination Levels. The level of illumination at the
car controls, platform, and car threshold and landing sill shall
be at least 5 footcandles (53.8 lux).
4.10.12* Car Controls. Elevator control panels shall have the
following features:
(1) Buttons. All control buttons shall be at least 3/4 in (19
mm) in their smallest dimension. They shall be raised or flush.
(2) Tactile, Braille, and Visual Control Indicators. All control
buttons shall be designated by Braille and by raised standard
alphabet characters for letters, arabic characters for numerals,
or standard symbols as shown in Fig. 23(a), and as required in
ASME A17.1-1990. Raised and Braille characters and symbols shall
comply with 4.30. The call button for the main entry floor shall
be designated by a raised star at the left of the floor
designation (see Fig. 23(a)). All raised designations for
control buttons shall be placed immediately to the left of the
button to which they apply. Applied plates, permanently
attached, are an acceptable means to provide raised control
designations. Floor buttons shall be provided with visual
indicators to show when each call is registered. The visual
indicators shall be extinguished when each call is answered.
(3) Height. All floor buttons shall be no higher than 54 in
(1370 mm) above the finish floor for side approach and 48 in
(1220 mm) for front approach. Emergency controls, including the
emergency alarm and emergency stop, shall be grouped at the
bottom of the panel and shall have their centerlines no less
than 35 in (890 mm) above the finish floor (see Fig. 23(a) and
(b)).
(4) Location. Controls shall be located on a front wall if cars
have center opening doors, and at the side wall or at the front
wall next to the door if cars have side opening doors (see Fig.
23(c) and (d)).
4.10.13* Car Position Indicators. In elevator cars, a visual car
position indicator shall be provided above the car control panel
or over the door to show the position of the elevator in the
hoistway. As the car passes or stops at a floor served by the
elevators, the corresponding numerals shall illuminate, and an
audible signal shall sound. Numerals shall be a minimum of 1/2
in (13 mm) high. The audible signal shall be no less than 20
decibels with a frequency no higher than 1500 Hz. An automatic
verbal announcement of the floor number at which a car stops or
which a car passes may be substituted for the audible signal.
4.10.14* Emergency Communications. If provided, emergency
two-way communication systems between the elevator and a point
outside the hoistway shall comply with ASME A17.1-1990. The
highest operable part of a two-way communication system shall be
a maximum of 48 in (1220 mm) from the floor of the car. It shall
be identified by a raised symbol and lettering complying with
4.30 and located adjacent to the device. If the system uses a
handset then the length of the cord from the panel to the
handset shall be at least 29 in (735 mm). If the system is
located in a closed compartment the compartment door hardware
shall conform to 4.27, Controls and Operating Mechanisms. The
emergency intercommunication system shall not require voice
communication.
4.11 Platform Lifts (Wheelchair Lifts).
4.11.1 Location. Platform lifts (wheelchair lifts) permitted by
4.1 shall comply with the requirements of 4.11.
4.11.2* Other Requirements. If platform lifts (wheelchair lifts)
are used, they shall comply with 4.2.4, 4.5, 4.27, and ASME
A17.1 Safety Code for Elevators and Escalators, Section XX,
1990.
4.11.3 Entrance. If platform lifts are used then they shall
facilitate unassisted entry, operation, and exit from the lift
in compliance with 4.11.2.
4.12 Windows.
4.12.1* General. (Reserved).
4.12.2* Window Hardware. (Reserved).
4.13 Doors.
4.13.1 General. Doors required to be accessible by 4.1 shall
comply with the requirements of 4.13.
4.13.2 Revolving Doors and Turnstiles. Revolving doors or
turnstiles shall not be the only means of passage at an
accessible entrance or along an accessible route. An accessible
gate or door shall be provided adjacent to the turnstile or
revolving door and shall be so designed as to facilitate the
same use pattern.
4.13.3 Gates. Gates, including ticket gates, shall meet all
applicable specifications of 4.13.
4.13.4 Double-Leaf Doorways. If doorways have two independently
operated door leaves, then at least one leaf shall meet the
specifications in 4.13.5 and 4.13.6. That leaf shall be an
active leaf.
4.13.5 Clear Width. Doorways shall have a minimum clear opening
of 32 in (815 mm) with the door open 90 degrees, measured
between the face of the door and the opposite stop (see Fig.
24(a), (b), (c), and (d)). Openings more than 24 in (610 mm) in
depth shall comply with 4.2.1 and 4.3.3 (see Fig. 24(e)).
EXCEPTION: Doors not requiring full user passage, such as
shallow closets, may have the clear opening reduced to 20 in
(510 mm) minimum.
4.13.6 Maneuvering Clearances at Doors. Minimum maneuvering
clearances at doors that are not automatic or power-assisted
shall be as shown in Fig. 25. The floor or ground area within
the required clearances shall be level and clear.
EXCEPTION: Entry doors to acute care hospital bedrooms for
in-patients shall be exempted from the requirement for space at
the latch side of the door (see dimension "x" in Fig. 25) if the
door is at least 44 in (1120 mm) wide.
4.13.7 Two Doors in Series. The minimum space between two hinged
or pivoted doors in series shall be 48 in (1220 mm) plus the
width of any door swinging into the space. Doors in series shall
swing either in the same direction or away from the space
between the doors (see Fig. 26).
4.13.8* Thresholds at Doorways. Thresholds at doorways shall not
exceed 3/4 in (19 mm) in height for exterior sliding doors or
1/2 in (13 mm) for other types of doors. Raised thresholds and
floor level changes at accessible doorways shall be beveled with
a slope no greater than 1:2 (see 4.5.2).
4.13.9* Door Hardware. Handles, pulls, latches, locks, and other
operating devices on accessible doors shall have a shape that is
easy to grasp with one hand and does not require tight grasping,
tight pinching, or twisting of the wrist to operate.
Lever-operated mechanisms, push-type mechanisms, and U-shaped
handles are acceptable designs. When sliding doors are fully
open, operating hardware shall be exposed and usable from both
sides. Hardware required for accessible door passage shall be
mounted no higher than 48 in (1220 mm) above finished floor.
4.13.10* Door Closers. If a door has a closer, then the sweep
period of the closer shall be adjusted so that from an open
position of 70 degrees, the door will take at least 3 seconds to
move to a point 3 in (75 mm) from the latch, measured to the
leading edge of the door.
4.13.11* Door Opening Force. The maximum force for pushing or
pulling open a door shall be as follows:
(1) Fire doors shall have the minimum opening force allowable by
the appropriate administrative authority.
(2) Other doors.
(a) exterior hinged doors: (Reserved).
(b) interior hinged doors: 5 lbf (22.2N)
(c) sliding or folding doors: 5 lbf (22.2N)
These forces do not apply to the force required to retract latch
bolts or disengage other devices that may hold the door in a
closed position.
4.13.12* Automatic Doors and Power-Assisted Doors. If an
automatic door is used, then it shall comply with ANSI/BHMA
A156.10-1985. Slowly opening, low-powered, automatic doors shall
comply with ANSI A156.19-1984. Such doors shall not open to back
check faster than 3 seconds and shall require no more than 15
lbf (66.6N) to stop door movement. If a power-assisted door is
used, its door-opening force shall comply with 4.13.11 and its
closing shall conform to the requirements in ANSI A156.19-1984.
4.14 Entrances.
4.14.1 Minimum Number. Entrances required to be accessible by
4.1 shall be part of an accessible route complying with 4.3.
Such entrances shall be connected by an accessible route to
public transportation stops, to accessible parking and passenger
loading zones, and to public streets or sidewalks if available
(see 4.3.2(1)). They shall also be connected by an accessible
route to all accessible spaces or elements within the building
or facility.
4.14.2 Service Entrances. A service entrance shall not be the
sole accessible entrance unless it is the only entrance to a
building or facility (for example, in a factory or garage).
4.15 Drinking Fountains and Water Coolers.
4.15.1 Minimum Number. Drinking fountains or water coolers
required to be accessible by 4.1 shall comply with 4.15.
4.15.2* Spout Height. Spouts shall be no higher than 36 in (915
mm), measured from the floor or ground surfaces to the spout
outlet (see Fig. 27(a)).
4.15.3 Spout Location. The spouts of drinking fountains and
water coolers shall be at the front of the unit and shall direct
the water flow in a trajectory that is parallel or nearly
parallel to the front of the unit. The spout shall provide a
flow of water at least 4 in (100 mm) high so as to allow the
insertion of a cup or glass under the flow of water. On an
accessible drinking fountain with a round or oval bowl, the
spout must be positioned so the flow of water is within 3 in (75
mm) of the front edge of the fountain.
4.15.4 Controls. Controls shall comply with 4.27.4. Unit
controls shall be front mounted or side mounted near the front
edge.
4.15.5 Clearances.
(1) Wall- and post-mounted cantilevered units shall have a clear
knee space between the bottom of the apron and the floor or
ground at least 27 in (685 mm) high, 30 in (760 mm) wide, and 17
in to 19 in (430 mm to 485 mm) deep (see Fig. 27(a) and (b)).
Such units shall also have a minimum clear floor space 30 in by
48 in (760 mm by 1220 mm) to allow a person in a wheelchair to
approach the unit facing forward.
(2) Free-standing or built-in units not having a clear space
under them shall have a clear floor space at least 30 in by 48
in (760 mm by 1220 mm) that allows a person in a wheelchair to
make a parallel approach to the unit (see Fig. 27(c) and (d)).
This clear floor space shall comply with 4.2.4.
4.16 Water Closets.
4.16.1 General. Accessible water closets shall comply with 4.16.
4.16.2 Clear Floor Space. Clear floor space for water closets
not in stalls shall comply with Fig. 28. Clear floor space may
be arranged to allow either a left-handed or right-handed
approach.
4.16.3* Height. The height of water closets shall be 17 in to 19
in (430 mm to 485 mm), measured to the top of the toilet seat
(see Fig. 29(b)). Seats shall not be sprung to return to a
lifted position.
4.16.4* Grab Bars. Grab bars for water closets not located in
stalls shall comply with 4.26 and Fig. 29. The grab bar behind
the water closet shall be 36 in (915 mm) minimum.
4.16.5* Flush Controls. Flush controls shall be hand operated or
automatic and shall comply with 4.27.4. Controls for flush
valves shall be mounted on the wide side of toilet areas no more
than 44 in (1120 mm) above the floor.
4.16.6 Dispensers. Toilet paper dispensers shall be installed
within reach, as shown in Fig. 29(b). Dispensers that control
delivery, or that do not permit continuous paper flow, shall not
be used.
4.17 Toilet Stalls.
4.17.1 Location. Accessible toilet stalls shall be on an
accessible route and shall meet the requirements of 4.17.
4.17.2 Water Closets. Water closets in accessible stalls shall
comply with 4.16.
4.17.3* Size and Arrangement. The size and arrangement of the
standard toilet stall shall comply with Fig. 30(a), Standard
Stall. Standard toilet stalls with a minimum depth of 56 in
(1420 mm) (see Fig. 30(a)) shall have wall-mounted water
closets. If the depth of a standard toilet stall is increased at
least 3 in (75 mm), then a floor-mounted water closet may be
used. Arrangements shown for standard toilet stalls may be
reversed to allow either a left- or right-hand approach.
Additional stalls shall be provided in conformance with 4.22.4.
EXCEPTION: In instances of alteration work where provision of a
standard stall (Fig. 30(a)) is technically infeasible or where
plumbing code requirements prevent combining existing stalls to
provide space, either alternate stall (Fig. 30(b)) may be
provided in lieu of the standard stall.
4.17.4 Toe Clearances. In standard stalls, the front partition
and at least one side partition shall provide a toe clearance of
at least 9 in (230 mm) above the floor. If the depth of the
stall is greater than 60 in (1525 mm), then the toe clearance is
not required.
4.17.5* Doors. Toilet stall doors, including door hardware,
shall comply with 4.13. If toilet stall approach is from the
latch side of the stall door, clearance between the door side of
the stall and any obstruction may be reduced to a minimum of 42
in (1065 mm) (Fig. 30).
4.17.6 Grab Bars. Grab bars complying with the length and
positioning shown in Fig. 30(a), (b), (c), and (d) shall be
provided. Grab bars may be mounted with any desired method as
long as they have a gripping surface at the locations shown and
do not obstruct the required clear floor area. Grab bars shall
comply with 4.26.
4.18 Urinals.
4.18.1 General. Accessible urinals shall comply with 4.18.
4.18.2 Height. Urinals shall be stall-type or wall-hung with an
elongated rim at a maximum of 17 in (430 mm) above the finish
floor.
4.18.3 Clear Floor Space. A clear floor space 30 in by 48 in
(760 mm by 1220 mm) shall be provided in front of urinals to
allow forward approach. This clear space shall adjoin or overlap
an accessible route and shall comply with 4.2.4. Urinal shields
that do not extend beyond the front edge of the urinal rim may
be provided with 29 in (735 mm) clearance between them.
4.18.4 Flush Controls. Flush controls shall be hand operated or
automatic, and shall comply with 4.27.4, and shall be mounted no
more than 44 in (1120 mm) above the finish floor.
4.19 Lavatories and Mirrors.
4.19.1 General. The requirements of 4.19 shall apply to lavatory
fixtures, vanities, and built-in lavatories.
4.19.2 Height and Clearances. Lavatories shall be mounted with
the rim or counter surface no higher than 34 in (865 mm) above
the finish floor. Provide a clearance of at least 29 in (735 mm)
above the finish floor to the bottom of the apron. Knee and toe
clearance shall comply with Fig. 31.
4.19.3 Clear Floor Space. A clear floor space 30 in by 48 in
(760 mm by 1220 mm) complying with 4.2.4 shall be provided in
front of a lavatory to allow forward approach. Such clear floor
space shall adjoin or overlap an accessible route and shall
extend a maximum of 19 in (485 mm) underneath the lavatory (see
Fig. 32).
4.19.4 Exposed Pipes and Surfaces. Hot water and drain pipes
under lavatories shall be insulated or otherwise configured to
protect against contact. There shall be no sharp or abrasive
surfaces under lavatories.
4.19.5 Faucets. Faucets shall comply with 4.27.4.
Lever-operated, push-type, and electronically controlled
mechanisms are examples of acceptable designs. If self-closing
valves are used the faucet shall remain open for at least 10
seconds.
4.19.6* Mirrors. Mirrors shall be mounted with the bottom edge
of the reflecting surface no higher than 40 in (1015 mm) above
the finish floor (see Fig. 31).
4.20 Bathtubs.
4.20.1 General. Accessible bathtubs shall comply with 4.20.
4.20.2 Floor Space. Clear floor space in front of bathtubs shall
be as shown in Fig. 33.
4.20.3 Seat. An in-tub seat or a seat at the head end of the tub
shall be provided as shown in Fig. 33 and 34. The structural
strength of seats and their attachments shall comply with
4.26.3. Seats shall be mounted securely and shall not slip
during use.
4.20.4 Grab Bars. Grab bars complying with 4.26 shall be
provided as shown in Fig. 33 and 34.
4.20.5 Controls. Faucets and other controls complying with
4.27.4 shall be located as shown in Fig. 34.
4.20.6 Shower Unit. A shower spray unit with a hose at least 60
in (1525 mm) long that can be used both as a fixed shower head
and as a hand-held shower shall be provided.
4.20.7 Bathtub Enclosures. If provided, enclosures for bathtubs
shall not obstruct controls or transfer from wheelchairs onto
bathtub seats or into tubs. Enclosures on bathtubs shall not
have tracks mounted on their rims.
4.21 Shower Stalls.
4.21.1* General. Accessible shower stalls shall comply with
4.21.
4.21.2 Size and Clearances. Except as specified in 9.1.2, shower
stall size and clear floor space shall comply with Fig. 35(a) or
(b). The shower stall in Fig. 35(a) shall be 36 in by 36 in (915
mm by 915 mm). Shower stalls required by 9.1.2 shall comply with
Fig. 57(a) or (b). The shower stall in Fig. 35(b) will fit into
the space required for a bathtub.
4.21.3 Seat. A seat shall be provided in shower stalls 36 in by
36 in (915 mm by 915 mm) and shall be as shown in Fig. 36. The
seat shall be mounted 17 in to 19 in (430 mm to 485 mm) from the
bathroom floor and shall extend the full depth of the stall. In
a 36 in by 36 in (915 mm by 915 mm) shower stall, the seat shall
be on the wall opposite the controls. Where a fixed seat is
provided in a 30 in by 60 in minimum (760 mm by 1525 mm) shower
stall, it shall be a folding type and shall be mounted on the
wall adjacent to the controls as shown in Fig. 57. The
structural strength of seats and their attachments shall comply
with 4.26.3.
4.21.4 Grab Bars. Grab bars complying with 4.26 shall be
provided as shown in Fig. 37.
4.21.5 Controls. Faucets and other controls complying with
4.27.4 shall be located as shown in Fig. 37. In shower stalls 36
in by 36 in (915 mm by 915 mm), all controls, faucets, and the
shower unit shall be mounted on the side wall opposite the seat.
4.21.6 Shower Unit. A shower spray unit with a hose at least 60
in (1525 mm) long that can be used both as a fixed shower head
and as a hand-held shower shall be provided.
EXCEPTION: In unmonitored facilities where vandalism is a
consideration, a fixed shower head mounted at 48 in (1220 mm)
above the shower floor may be used in lieu of a hand-held shower
head.
4.21.7 Curbs. If provided, curbs in shower stalls 36 in by 36 in
(915 mm by 915 mm) shall be no higher than 1/2 in (13 mm).
Shower stalls that are 30 in by 60 in (760 mm by 1525 mm)
minimum shall not have curbs.
4.21.8 Shower Enclosures. If provided, enclosures for shower
stalls shall not obstruct controls or obstruct transfer from
wheelchairs onto shower seats.
4.22 Toilet Rooms.
4.22.1 Minimum Number. Toilet facilities required to be
accessible by 4.1 shall comply with 4.22. Accessible toilet
rooms shall be on an accessible route.
4.22.2 Doors. All doors to accessible toilet rooms shall comply
with 4.13. Doors shall not swing into the clear floor space
required for any fixture.
4.22.3* Clear Floor Space. The accessible fixtures and controls
required in 4.22.4, 4.22.5, 4.22.6, and 4.22.7 shall be on an
accessible route. An unobstructed turning space complying with
4.2.3 shall be provided within an accessible toilet room. The
clear floor space at fixtures and controls, the accessible
route, and the turning space may overlap.
4.22.4 Water Closets. If toilet stalls are provided, then at
least one shall be a standard toilet stall complying with 4.17;
where 6 or more stalls are provided, in addition to the stall
complying with 4.17.3, at least one stall 36 in (915 mm) wide
with an outward swinging, self-closing door and parallel grab
bars complying with Fig. 30(d) and 4.26 shall be provided. Water
closets in such stalls shall comply with 4.16. If water closets
are not in stalls, then at least one shall comply with 4.16.
4.22.5 Urinals. If urinals are provided, then at least one shall
comply with 4.18.
4.22.6 Lavatories and Mirrors. If lavatories and mirrors are
provided, then at least one of each shall comply with 4.19.
4.22.7 Controls and Dispensers. If controls, dispensers,
receptacles, or other equipment are provided, then at least one
of each shall be on an accessible route and shall comply with
4.27.
4.23 Bathrooms, Bathing Facilities, and Shower Rooms.
4.23.1 Minimum Number. Bathrooms, bathing facilities, or shower
rooms required to be accessible by 4.1 shall comply with 4.23
and shall be on an accessible route.
4.23.2 Doors. Doors to accessible bathrooms shall comply with
4.13. Doors shall not swing into the floor space required for
any fixture.
4.23.3* Clear Floor Space. The accessible fixtures and controls
required in 4.23.4, 4.23.5, 4.23.6, 4.23.7, 4.23.8, and 4.23.9
shall be on an accessible route. An unobstructed turning space
complying with 4.2.3 shall be provided within an accessible
bathroom. The clear floor spaces at fixtures and controls, the
accessible route, and the turning space may overlap.
4.23.4 Water Closets. If toilet stalls are provided, then at
least one shall be a standard toilet stall complying with 4.17;
where 6 or more stalls are provided, in addition to the stall
complying with 4.17.3, at least one stall 36 in (915 mm) wide
with an outward swinging, self-closing door and parallel grab
bars complying with Fig. 30(d) and 4.26 shall be provided. Water
closets in such stalls shall comply with 4.16. If water closets
are not in stalls, then at least one shall comply with 4.16.
4.23.5 Urinals. If urinals are provided, then at least one shall
comply with 4.18.
4.23.6 Lavatories and Mirrors. If lavatories and mirrors are
provided, then at least one of each shall comply with 4.19.
4.23.7 Controls and Dispensers. If controls, dispensers,
receptacles, or other equipment are provided, then at least one
of each shall be on an accessible route and shall comply with
4.27.
4.23.8 Bathing and Shower Facilities. If tubs or showers are
provided, then at least one accessible tub that complies with
4.20 or at least one accessible shower that complies with 4.21
shall be provided.
4.23.9* Medicine Cabinets. If medicine cabinets are provided, at
least one shall be located with a usable shelf no higher than 44
in (1120 mm) above the floor space. The floor space shall comply
with 4.2.4.
4.24 Sinks.
4.24.1 General. Sinks required to be accessible by 4.1 shall
comply with 4.24.
4.24.2 Height. Sinks shall be mounted with the counter or rim no
higher than 34 in (865 mm) above the finish floor.
4.24.3 Knee Clearance. Knee clearance that is at least 27 in
(685 mm) high, 30 in (760 mm) wide, and 19 in (485 mm) deep
shall be provided underneath sinks.
4.24.4 Depth. Each sink shall be a maximum of 6-1/2 in (165 mm)
deep.
4.24.5 Clear Floor Space. A clear floor space at least 30 in by
48 in (760 mm by 1220 mm) complying with 4.2.4 shall be provided
in front of a sink to allow forward approach. The clear floor
space shall be on an accessible route and shall extend a maximum
of 19 in (485 mm) underneath the sink (see Fig. 32).
4.24.6 Exposed Pipes and Surfaces. Hot water and drain pipes
exposed under sinks shall be insulated or otherwise configured
so as to protect against contact. There shall be no sharp or
abrasive surfaces under sinks.
4.24.7 Faucets. Faucets shall comply with 4.27.4.
Lever-operated, push-type, touch-type, or electronically
controlled mechanisms are acceptable designs.
4.25 Storage.
4.25.1 General. Fixed storage facilities such as cabinets,
shelves, closets, and drawers required to be accessible by 4.1
shall comply with 4.25.
4.25.2 Clear Floor Space. A clear floor space at least 30 in by
48 in (760 mm by 1220 mm) complying with 4.2.4 that allows
either a forward or parallel approach by a person using a
wheelchair shall be provided at accessible storage facilities.
4.25.3 Height. Accessible storage spaces shall be within at
least one of the reach ranges specified in 4.2.5 and 4.2.6 (see
Fig. 5 and Fig 6). Clothes rods or shelves shall be a maximum of
54 in (1370 mm) above the finish floor for a side approach.
Where the distance from the wheelchair to the clothes rod or
shelf exceeds 10 in (255 mm) (as in closets without accessible
doors) the height and depth to the rod or shelf shall comply
with Fig. 38(a) and Fig. 38(b).
4.25.4 Hardware. Hardware for accessible storage facilities
shall comply with 4.27.4. Touch latches and U-shaped pulls are
acceptable.
4.26 Handrails, Grab Bars, and Tub and Shower Seats.
4.26.1* General. All handrails, grab bars, and tub and shower
seats required to be accessible by 4.1, 4.8, 4.9, 4.16, 4.17,
4.20 or 4.21 shall comply with 4.26.
4.26.2* Size and Spacing of Grab Bars and Handrails. The
diameter or width of the gripping surfaces of a handrail or grab
bar shall be 1-1/4 in to 1-1/2 in (32 mm to 38 mm), or the shape
shall provide an equivalent gripping surface. If handrails or
grab bars are mounted adjacent to a wall, the space between the
wall and the grab bar shall be 1-1/2 in (38 mm) (see Fig. 39(a),
(b), (c), and (e)). Handrails may be located in a recess if the
recess is a maximum of 3 in (75 mm) deep and extends at least 18
in (455 mm) above the top of the rail (see Fig. 39(d)).
4.26.3 Structural Strength. The structural strength of grab
bars, tub and shower seats, fasteners, and mounting devices
shall meet the following specification:
(1) Bending stress in a grab bar or seat induced by the maximum
bending moment from the application of 250 lbf (1112N) shall be
less than the allowable stress for the material of the grab bar
or seat.
(2) Shear stress induced in a grab bar or seat by the
application of 250 lbf (1112N) shall be less than the allowable
shear stress for the material of the grab bar or seat. If the
connection between the grab bar or seat and its mounting bracket
or other support is considered to be fully restrained, then
direct and torsional shear stresses shall be totaled for the
combined shear stress, which shall not exceed the allowable
shear stress.
(3) Shear force induced in a fastener or mounting device from
the application of 250 lbf (1112N) shall be less than the
allowable lateral load of either the fastener or mounting device
or the supporting structure, whichever is the smaller allowable
load.
(4) Tensile force induced in a fastener by a direct tension
force of 250 lbf (1112N) plus the maximum moment from the
application of 250 lbf (1112N) shall be less than the allowable
withdrawal load between the fastener and the supporting
structure.
(5) Grab bars shall not rotate within their fittings.
4.26.4 Eliminating Hazards. A handrail or grab bar and any wall
or other surface adjacent to it shall be free of any sharp or
abrasive elements. Edges shall have a minimum radius of 1/8 in
(3.2 mm).
4.27 Controls and Operating Mechanisms.
4.27.1 General. Controls and operating mechanisms required to be
accessible by 4.1 shall comply with 4.27.
4.27.2 Clear Floor Space. Clear floor space complying with 4.2.4
that allows a forward or a parallel approach by a person using a
wheelchair shall be provided at controls, dispensers,
receptacles, and other operable equipment.
4.27.3* Height. The highest operable part of controls,
dispensers, receptacles, and other operable equipment shall be
placed within at least one of the reach ranges specified in
4.2.5 and 4.2.6. Electrical and communications system
receptacles on walls shall be mounted no less than 15 in (380
mm) above the floor.
EXCEPTION: These requirements do not apply where the use of
special equipment dictates otherwise or where electrical and
communications systems receptacles are not normally intended for
use by building occupants.
4.27.4 Operation. Controls and operating mechanisms shall be
operable with one hand and shall not require tight grasping,
pinching, or twisting of the wrist. The force required to
activate controls shall be no greater than 5 lbf (22.2 N).
4.28 Alarms.
4.28.1 General. Alarm systems required to be accessible by 4.1
shall comply with 4.28. At a minimum, visual signal appliances
shall be provided in buildings and facilities in each of the
following areas: restrooms and any other general usage areas
(e.g., meeting rooms), hallways, lobbies, and any other area for
common use.
4.28.2* Audible Alarms. If provided, audible emergency alarms
shall produce a sound that exceeds the prevailing equivalent
sound level in the room or space by at least 15 dbA or exceeds
any maximum sound level with a duration of 60 seconds by 5 dbA,
whichever is louder. Sound levels for alarm signals shall not
exceed 120 dbA.
4.28.3* Visual Alarms. Visual alarm signal appliances shall be
integrated into the building or facility alarm system. If single
station audible alarms are provided then single station visual
alarm signals shall be provided. Visual alarm signals shall have
the following minimum photometric and location features:
(1) The lamp shall be a xenon strobe type or equivalent.
(2) The color shall be clear or nominal white (i.e., unfiltered
or clear filtered white light).
(3) The maximum pulse duration shall be two-tenths of one second
(0.2 sec) with a maximum duty cycle of 40 percent. The pulse
duration is defined as the time interval between initial and
final points of 10 percent of maximum signal.
(4) The intensity shall be a minimum of 75 candela.
(5) The flash rate shall be a minimum of 1 Hz and a maximum of 3
Hz.
(6) The appliance shall be placed 80 in (2030 mm) above the
highest floor level within the space or 6 in (152 mm) below the
ceiling, whichever is lower.
(7) In general, no place in any room or space required to have a
visual signal appliance shall be more than 50 ft (15 m) from the
signal (in the horizontal plane). In large rooms and spaces
exceeding 100 ft (30 m) across, without obstructions 6 ft (2 m)
above the finish floor, such as auditoriums, devices may be
placed around the perimeter, spaced a maximum 100 ft (30 m)
apart, in lieu of suspending appliances from the ceiling.
(8) No place in common corridors or hallways in which visual
alarm signalling appliances are required shall be more than 50
ft (15 m) from the signal.
4.28.4* Auxiliary Alarms. Units and sleeping accommodations
shall have a visual alarm connected to the building emergency
alarm system or shall have a standard 110-volt electrical
receptacle into which such an alarm can be connected and a means
by which a signal from the building emergency alarm system can
trigger such an auxiliary alarm. When visual alarms are in place
the signal shall be visible in all areas of the unit or room.
Instructions for use of the auxiliary alarm or receptacle shall
be provided.
4.29 Detectable Warnings.
4.29.1 General. Detectable warnings required by 4.1 and 4.7
shall comply with 4.29.
4.29.2* Detectable Warnings on Walking Surfaces. Detectable
warnings shall consist of raised truncated domes with a diameter
of nominal 0.9 in (23 mm), a height of nominal 0.2 in (5 mm) and
a center-to-center spacing of nominal 2.35 in (60 mm) and shall
contrast visually with adjoining surfaces, either light-on-dark,
or dark-on-light.
The material used to provide contrast shall be an integral part
of the walking surface. Detectable warnings used on interior
surfaces shall differ from adjoining walking surfaces in
resiliency or sound-on-cane contact.
4.29.3 Detectable Warnings on Doors To Hazardous Areas.
(Reserved).
4.29.4 Detectable Warnings at Stairs. (Reserved).
4.29.5 Detectable Warnings at Hazardous Vehicular Areas. If a
walk crosses or adjoins a vehicular way, and the walking
surfaces are not separated by curbs, railings, or other elements
between the pedestrian areas and vehicular areas, the boundary
between the areas shall be defined by a continuous detectable
warning which is 36 in (915 mm) wide, complying with 4.29.2.
4.29.6 Detectable Warnings at Reflecting Pools. The edges of
reflecting pools shall be protected by railings, walls, curbs,
or detectable warnings complying with 4.29.2.
4.29.7 Standardization. (Reserved).
4.30 Signage.
4.30.1* General. Signage required to be accessible by 4.1 shall
comply with the applicable provisions of 4.30.
4.30.2* Character Proportion. Letters and numbers on signs shall
have a width-to-height ratio between 3:5 and 1:1 and a
stroke-width-to-height ratio between 1:5 and 1:10.
4.30.3 Character Height. Characters and numbers on signs shall
be sized according to the viewing distance from which they are
to be read. The minimum height is measured using an upper case
X. Lower case characters are permitted.
Height Above Finished Floor Minimum Character Height
Suspended or Projected
Overhead in compliance with 4.4.2 3 in (75 mm) minimum
4.30.4* Raised and Brailled Characters and Pictorial Symbol
Signs (Pictograms). Letters and numerals shall be raised 1/32
in, upper case, sans serif or simple serif type and shall be
accompanied with Grade 2 Braille. Raised characters shall be at
least 5/8 in (16 mm) high, but no higher than 2 in (50 mm).
Pictograms shall be accompanied by the equivalent verbal
description placed directly below the pictogram. The border
dimension of the pictogram shall be 6 in (152 mm) minimum in
height.
4.30.5* Finish and Contrast. The characters and background of
signs shall be eggshell, matte, or other non-glare finish.
Characters and symbols shall contrast with their background
--either light characters on a dark background or dark
characters on a light background.
4.30.6 Mounting Location and Height. Where permanent
identification is provided for rooms and spaces, signs shall be
installed on the wall adjacent to the latch side of the door.
Where there is no wall space to the latch side of the door,
including at double leaf doors, signs shall be placed on the
nearest adjacent wall. Mounting height shall be 60 in (1525 mm)
above the finish floor to the centerline of the sign. Mounting
location for such signage shall be so that a person may approach
within 3 in (76 mm) of signage without encountering protruding
objects or standing within the swing of a door.
4.30.7* Symbols of Accessibility.
(1) Facilities and elements required to be identified as
accessible by 4.1 shall use the international symbol of
accessibility. The symbol shall be displayed as shown in Fig.
43(a) and (b).
(2) Volume Control Telephones. Telephones required to have a
volume control by 4.1.3(17)(b) shall be identified by a sign
containing a depiction of a telephone handset with radiating
sound waves.
(3) Text Telephones. Text telephones required by 4.1.3(17)(c)
shall be identified by the international TDD symbol (Fig 43(c)).
In addition, if a facility has a public text telephone,
directional signage indicating the location of the nearest text
telephone shall be placed adjacent to all banks of telephones
which do not contain a text telephone. Such directional signage
shall include the international TDD symbol. If a facility has no
banks of telephones, the directional signage shall be provided
at the entrance (e.g., in a building directory).
(4) Assistive Listening Systems. In assembly areas where
permanently installed assistive listening systems are required
by 4.1.3(19)(b) the availability of such systems shall be
identified with signage that includes the international symbol
of access for hearing loss (Fig 43(d)).
4.30.8* Illumination Levels. (Reserved).
4.31 Telephones.
4.31.1 General. Public telephones required to be accessible by
4.1 shall comply with 4.31.
4.31.2 Clear Floor or Ground Space. A clear floor or ground
space at least 30 in by 48 in (760 mm by 1220 mm) that allows
either a forward or parallel approach by a person using a
wheelchair shall be provided at telephones (see Fig. 44). The
clear floor or ground space shall comply with 4.2.4. Bases,
enclosures, and fixed seats shall not impede approaches to
telephones by people who use wheelchairs.
4.31.3* Mounting Height. The highest operable part of the
telephone shall be within the reach ranges specified in 4.2.5 or
4.2.6.
4.31.4 Protruding Objects. Telephones shall comply with 4.4.
4.31.5 Hearing Aid Compatible and Volume Control Telephones
Required by 4.1.
(1) Telephones shall be hearing aid compatible.
(2) Volume controls, capable of a minimum of 12 dbA and a
maximum of 18 dbA above normal, shall be provided in accordance
with 4.1.3. If an automatic reset is provided then 18 dbA may be
exceeded.
4.31.6 Controls. Telephones shall have pushbutton controls where
service for such equipment is available.
4.31.7 Telephone Books. Telephone books, if provided, shall be
located in a position that complies with the reach ranges
specified in 4.2.5 and 4.2.6.
4.31.8 Cord Length. The cord from the telephone to the handset
shall be at least 29 in (735 mm) long.
4.31.9* Text Telephones Required by 4.1.
(1) Text telephones used with a pay telephone shall be
permanently affixed within, or adjacent to, the telephone
enclosure. If an acoustic coupler is used, the telephone cord
shall be sufficiently long to allow connection of the text
telephone and the telephone receiver.
(2) Pay telephones designed to accommodate a portable text
telephone shall be equipped with a shelf and an electrical
outlet within or adjacent to the telephone enclosure. The
telephone handset shall be capable of being placed flush on the
surface of the shelf. The shelf shall be capable of
accommodating a text telephone and shall have 6 in (152 mm)
minimum vertical clearance in the area where the text telephone
is to be placed.
(3) Equivalent facilitation may be provided. For example, a
portable text telephone may be made available in a hotel at the
registration desk if it is available on a 24-hour basis for use
with nearby public pay telephones. In this instance, at least
one pay telephone shall comply with paragraph 2 of this section.
In addition, if an acoustic coupler is used, the telephone
handset cord shall be sufficiently long so as to allow
connection of the text telephone and the telephone receiver.
Directional signage shall be provided and shall comply with
4.30.7.
4.32 Fixed or Built-in Seating and Tables.
4.32.1 Minimum Number. Fixed or built-in seating or tables
required to be accessible by 4.1 shall comply with 4.32.
4.32.2 Seating. If seating spaces for people in wheelchairs are
provided at fixed tables or counters, clear floor space
complying with 4.2.4 shall be provided. Such clear floor space
shall not overlap knee space by more than 19 in (485 mm) (see
Fig. 45).
4.32.3 Knee Clearances. If seating for people in wheelchairs is
provided at tables or counters, knee spaces at least 27 in (685
mm) high, 30 in (760 mm) wide, and 19 in (485 mm) deep shall be
provided (see Fig. 45).
4.32.4* Height of Tables or Counters. The tops of accessible
tables and counters shall be from 28 in to 34 in (710 mm to 865
mm) above the finish floor or ground.
4.33 Assembly Areas.
4.33.1 Minimum Number. Assembly and associated areas required to
be accessible by 4.1 shall comply with 4.33.
4.33.2* Size of Wheelchair Locations. Each wheelchair location
shall provide minimum clear ground or floor spaces as shown in
Fig. 46.
4.33.3* Placement of Wheelchair Locations. Wheelchair areas
shall be an integral part of any fixed seating plan and shall be
provided so as to provide people with physical disabilities a
choice of admission prices and lines of sight comparable to
those for members of the general public. They shall adjoin an
accessible route that also serves as a means of egress in case
of emergency. At least one companion fixed seat shall be
provided next to each wheelchair seating area. When the seating
capacity exceeds 300, wheelchair spaces shall be provided in
more than one location. Readily removable seats may be installed
in wheelchair spaces when the spaces are not required to
accommodate wheelchair users.
EXCEPTION: Accessible viewing positions may be clustered for
bleachers, balconies, and other areas having sight lines that
require slopes of greater than 5 percent. Equivalent accessible
viewing positions may be located on levels having accessible
egress.
4.33.4 Surfaces. The ground or floor at wheelchair locations
shall be level and shall comply with 4.5.
4.33.5 Access to Performing Areas. An accessible route shall
connect wheelchair seating locations with performing areas,
including stages, arena floors, dressing rooms, locker rooms,
and other spaces used by performers.
4.33.6* Placement of Listening Systems. If the listening system
provided serves individual fixed seats, then such seats shall be
located within a 50 ft (15 m) viewing distance of the stage or
playing area and shall have a complete view of the stage or
playing area.
4.33.7* Types of Listening Systems. Assistive listening systems
(ALS) are intended to augment standard public address and audio
systems by providing signals which can be received directly by
persons with special receivers or their own hearing aids and
which eliminate or filter background noise. The type of
assistive listening system appropriate for a particular
application depends on the characteristics of the setting, the
nature of the program, and the intended audience. Magnetic
induction loops, infra-red and radio frequency systems are types
of listening systems which are appropriate for various
applications.
4.34 Automated Teller Machines.
4.34.1 General. Each automated teller machine required to be
accessible by 4.1.3 shall be on an accessible route and shall
comply with 4.34.
4.34.2 Clear Floor Space. The automated teller machine shall be
located so that clear floor space complying with 4.2.4 is
provided to allow a person using a wheelchair to make a forward
approach, a parallel approach, or both, to the machine.
4.34.3 Reach Ranges.
(1) Forward Approach Only. If only a forward approach is
possible, operable parts of all controls shall be placed within
the forward reach range specified in 4.2.5.
(2) Parallel Approach Only. If only a parallel approach is
possible, operable parts of controls shall be placed as follows:
(a) Reach Depth Not More Than 10 in (255 mm). Where the reach
depth to the operable parts of all controls as measured from the
vertical plane perpendicular to the edge of the unobstructed
clear floor space at the farthest protrusion of the automated
teller machine or surround is not more than 10 in (255 mm), the
maximum height above the finished floor or grade shall be 54 in
(1370 mm).
(b) Reach Depth More Than 10 in (255 mm). Where the reach depth
to the operable parts of any control as measured from the
vertical plane perpendicular to the edge of the unobstructed
clear floor space at the farthest protrusion of the automated
teller machine or surround is more than 10 in (255 mm), the
maximum height above the finished floor or grade shall be as
follows:
(3) Forward and Parallel Approach. If both a forward and
parallel approach are possible, operable parts of controls shall
be placed within at least one of the reach ranges in paragraphs
(1) or (2) of this section.
(4) Bins. Where bins are provided, for envelopes, waste paper,
or other purposes, at least one of each type provided shall
comply with the applicable reach ranges in paragraph (1), (2),
or (3) of this section.
EXCEPTION: Where a function can be performed in a substantially
equivalent manner by using an alternate control, only one of the
controls needed to perform that function is required to comply
with this section. If the controls are identified by tactile
markings, such markings shall be provided on both controls.
4.34.4 Controls. Controls for user activation shall comply with
4.27.4.
4.34.5 Equipment for Persons with Vision Impairments.
Instructions and all information for use shall be made
accessible to and independently usable by persons with vision
impairments.
4.35 Dressing and Fitting Rooms.
4.35.1 General. Dressing and fitting rooms required to be
accessible by 4.1 shall comply with 4.35 and shall be on an
accessible route.
4.35.2 Clear Floor Space. A clear floor space allowing a person
using a wheelchair to make a 180-degree turn shall be provided
in every accessible dressing room entered through a swinging or
sliding door. No door shall swing into any part of the turning
space. Turning space shall not be required in a private dressing
room entered through a curtained opening at least 32 in (815 mm)
wide if clear floor space complying with section 4.2 renders the
dressing room usable by a person using a wheelchair.
4.35.3 Doors. All doors to accessible dressing rooms shall be in
compliance with section 4.13.
4.35.4 Bench. Every accessible dressing room shall have a 24 in
by 48 in (610 mm by 1220 mm) bench fixed to the wall along the
longer dimension. The bench shall be mounted 17 in to 19 in (430
mm to 485 mm) above the finish floor. Clear floor space shall be
provided alongside the bench to allow a person using a
wheelchair to make a parallel transfer onto the bench. The
structural strength of the bench and attachments shall comply
with 4.26.3. Where installed in conjunction with showers,
swimming pools, or other wet locations, water shall not
accumulate upon the surface of the bench and the bench shall
have a slip-resistant surface.
4.35.5 Mirror. Where mirrors are provided in dressing rooms of
the same use, then in an accessible dressing room, a full-length
mirror, measuring at least 18 in wide by 54 in high (460 mm by
1370 mm), shall be mounted in a position affording a view to a
person on the bench as well as to a person in a standing
position.
NOTE: Sections 4.1.1 through 4.1.7 and sections 5 through 10 are
different from ANSI A117.1 in their entirety and are printed in
standard type.
5. RESTAURANTS AND CAFETERIAS.
5.1* General. Except as specified or modified in this section,
restaurants and cafeterias shall comply with the requirements of
4.1 to 4.35. Where fixed tables (or dining counters where food
is consumed but there is no service) are provided, at least 5
percent, but not less than one, of the fixed tables (or a
portion of the dining counter) shall be accessible and shall
comply with 4.32 as required in 4.1.3(18). In establishments
where separate areas are designated for smoking and non-smoking
patrons, the required number of accessible fixed tables (or
counters) shall be proportionally distributed between the
smoking and non-smoking areas. In new construction, and where
practicable in alterations, accessible fixed tables (or
counters) shall be distributed throughout the space or facility.
5.2 Counters and Bars. Where food or drink is served at counters
exceeding 34 in (865 mm) in height for consumption by customers
seated on stools or standing at the counter, a portion of the
main counter which is 60 in (1525 mm) in length minimum shall be
provided in compliance with 4.32 or service shall be available
at accessible tables within the same area.
5.3 Access Aisles. All accessible fixed tables shall be
accessible by means of an access aisle at least 36 in (915 mm)
clear between parallel edges of tables or between a wall and the
table edges.
5.4 Dining Areas. In new construction, all dining areas,
including raised or sunken dining areas, loggias, and outdoor
seating areas, shall be accessible. In non-elevator buildings,
an accessible means of vertical access to the mezzanine is not
required under the following conditions: 1) the area of
mezzanine seating measures no more than 33 percent of the area
of the total accessible seating area; 2) the same services and
decor are provided in an accessible space usable by the general
public; and, 3) the accessible areas are not restricted to use
by people with disabilities. In alterations, accessibility to
raised or sunken dining areas, or to all parts of outdoor
seating areas is not required provided that the same services
and decor are provided in an accessible space usable by the
general public and are not restricted to use by people with
disabilities.
5.5 Food Service Lines. Food service lines shall have a minimum
clear width of 36 in (915 mm), with a preferred clear width of
42 in (1065 mm) to allow passage around a person using a
wheelchair. Tray slides shall be mounted no higher than 34 in
(865 mm) above the floor (see Fig. 53). If self-service shelves
are provided, at least 50 percent of each type must be within
reach ranges specified in 4.2.5 and 4.2.6.
5.6 Tableware and Condiment Areas. Self-service shelves and
dispensing devices for tableware, dishware, condiments, food and
beverages shall be installed to comply with 4.2 (see Fig. 54).
5.7 Raised Platforms. In banquet rooms or spaces where a head
table or speaker's lectern is located on a raised platform, the
platform shall be accessible in compliance with 4.8 or 4.11.
Open edges of a raised platform shall be protected by placement
of tables or by a curb.
5.8 Vending Machines and Other Equipment. Spaces for vending
machines and other equipment shall comply with 4.2 and shall be
located on an accessible route.
5.9 Quiet Areas. (Reserved).
6. MEDICAL CARE FACILITIES.
6.1 General. Medical care facilities included in this section
are those in which people receive physical or medical treatment
or care and where persons may need assistance in responding to
an emergency and where the period of stay may exceed twenty-four
hours. In addition to the requirements of 4.1 through 4.35,
medical care facilities and buildings shall comply with 6.
(1) Hospitals - general purpose hospitals, psychiatric
facilities, detoxification facilities - At least 10 percent of
patient bedrooms and toilets, and all public use and common use
areas are required to be designed and constructed to be
accessible.
(2) Hospitals and rehabilitation facilities that specialize in
treating conditions that affect mobility, or units within either
that specialize in treating conditions that affect mobility -
All patient bedrooms and toilets, and all public use and common
use areas are required to be designed and constructed to be
accessible.
(3) Long term care facilities, nursing homes - At least 50
percent of patient bedrooms and toilets, and all public use and
common use areas are required to be designed and constructed to
be accessible.
(4) Alterations to patient bedrooms.
(a) When patient bedrooms are being added or altered as part of
a planned renovation of an entire wing, a department, or other
discrete area of an existing medical facility, a percentage of
the patient bedrooms that are being added or altered shall
comply with 6.3. The percentage of accessible rooms provided
shall be consistent with the percentage of rooms required to be
accessible by the applicable requirements of 6.1(1), 6.1(2), or
6.1(3), until the number of accessible patient bedrooms in the
facility equals the overall number that would be required if the
facility were newly constructed. (For example, if 20 patient
bedrooms are being altered in the obstetrics department of a
hospital, 2 of the altered rooms must be made accessible. If,
within the same hospital, 20 patient bedrooms are being altered
in a unit that specializes in treating mobility impairments, all
of the altered rooms must be made accessible.) Where
toilet/bathrooms are part of patient bedrooms which are added or
altered and required to be accessible, each such patient
toilet/bathroom shall comply with 6.4.
(b) When patient bedrooms are being added or altered
individually, and not as part of an alteration of the entire
area, the altered patient bedrooms shall comply with 6.3, unless
either: a) the number of accessible rooms provided in the
department or area containing the altered patient bedroom equals
the number of accessible patient bedrooms that would be required
if the percentage requirements of 6.1(1), 6.1(2), or 6.1(3) were
applied to that department or area; or b) the number of
accessible patient bedrooms in the facility equals the overall
number that would be required if the facility were newly
constructed. Where toilet/bathrooms are part of patient bedrooms
which are added or altered and required to be accessible, each
such toilet/bathroom shall comply with 6.4.
6.2 Entrances. At least one accessible entrance that complies
with 4.14 shall be protected from the weather by canopy or roof
overhang. Such entrances shall incorporate a passenger loading
zone that complies with 4.6.6.
6.3 Patient Bedrooms. Provide accessible patient bedrooms in
compliance with 4.1 through 4.35. Accessible patient bedrooms
shall comply with the following:
(1) Each bedroom shall have a door that complies with 4.13.
EXCEPTION: Entry doors to acute care hospital bedrooms for
in-patients shall be exempted from the requirement in 4.13.6 for
maneuvering space at the latch side of the door if the door is
at least 44 in (1120 mm) wide.
(2) Each bedroom shall have adequate space to provide a
maneuvering space that complies with 4.2.3. In rooms with 2
beds, it is preferable that this space be located between beds.
(3) Each bedroom shall have adequate space to provide a minimum
clear floor space of 36 in (915 mm) along each side of the bed
and to provide an accessible route complying with 4.3.3 to each
side of each bed.
6.4 Patient Toilet Rooms. Where toilet/bath rooms are provided
as a part of a patient bedroom, each patient bedroom that is
required to be accessible shall have an accessible toilet/bath
room that complies with 4.22 or 4.23 and shall be on an
accessible route.
7. BUSINESS AND MERCANTILE.
7.1 General. In addition to the requirements of 4.1 to 4.35, the
design of all areas used for business transactions with the
public shall comply with 7.
7.2 Sales and Service Counters, Teller Windows, Information
Counters.
(1) In department stores and miscellaneous retail stores where
counters have cash registers and are provided for sales or
distribution of goods or services to the public, at least one of
each type shall have a portion of the counter which is at least
36 in (915mm) in length with a maximum height of 36 in (915 mm)
above the finish floor. It shall be on an accessible route
complying with 4.3. The accessible counters must be dispersed
throughout the building or facility. In alterations where it is
technically infeasible to provide an accessible counter, an
auxiliary counter meeting these requirements may be provided.
(2) At ticketing counters, teller stations in a bank,
registration counters in hotels and motels, box office ticket
counters, and other counters that may not have a cash register
but at which goods or services are sold or distributed, either:
(i) a portion of the main counter which is a minimum of 36 in
(915 mm) in length shall be provided with a maximum height of 36
in (915 mm); or
(ii) an auxiliary counter with a maximum height of 36 in (915
mm) in close proximity to the main counter shall be provided; or
(iii) equivalent facilitation shall be provided (e.g., at a
hotel registration counter, equivalent facilitation might
consist of: (1) provision of a folding shelf attached to the
main counter on which an individual with disabilities can write,
and (2) use of the space on the side of the counter or at the
concierge desk, for handing materials back and forth).
All accessible sales and service counters shall be on an
accessible route complying with 4.3.
(3)* Assistive Listening Devices. (Reserved)
7.3* Check-out Aisles.
(1) In new construction, accessible check-out aisles shall be
provided in conformance with the table below:
Total Check-out
Aisles of Each Design Minimum Number
of Accessible Check-out Aisles
(of each design)
1 - 4
5 - 8
8 - 15
over 15 1
2
3
3, plus 20% of
additional aisles
EXCEPTION: In new construction, where the selling space is under
5000 square feet, only one check-out aisle is required to be
accessible.
EXCEPTION: In alterations, at least one check-out aisle shall be
accessible in facilities under 5000 square feet of selling
space. In facilities of 5000 or more square feet of selling
space, at least one of each design of check-out aisle shall be
made accessible when altered until the number of accessible
check-out aisles of each design equals the number required in
new construction.
Examples of check-out aisles of different "design" include those
which are specifically designed to serve different functions.
Different "design" includes but is not limited to the following
features - length of belt or no belt; or permanent signage
designating the aisle as an express lane.
(2) Clear aisle width for accessible check-out aisles shall
comply with 4.2.1 and maximum adjoining counter height shall not
exceed 38 in (965 mm) above the finish floor. The top of the lip
shall not exceed 40 in (1015 mm) above the finish floor.
(3) Signage identifying accessible check-out aisles shall comply
with 4.30.7 and shall be mounted above the check-out aisle in
the same location where the check-out number or type of
check-out is displayed.
7.4 Security Bollards. Any device used to prevent the removal of
shopping carts from store premises shall not prevent access or
egress to people in wheelchairs. An alternate entry that is
equally convenient to that provided for the ambulatory
population is acceptable.
8. LIBRARIES.
8.1 General. In addition to the requirements of 4.1 to 4.35, the
design of all public areas of a library shall comply with 8,
including reading and study areas, stacks, reference rooms,
reserve areas, and special facilities or collections.
8.2 Reading and Study Areas. At least 5 percent or a minimum of
one of each element of fixed seating, tables, or study carrels
shall comply with 4.2 and 4.32. Clearances between fixed
accessible tables and between study carrels shall comply with
4.3.
8.3 Check-Out Areas. At least one lane at each check-out area
shall comply with 7.2(1). Any traffic control or book security
gates or turnstiles shall comply with 4.13.
8.4 Card Catalogs and Magazine Displays. Minimum clear aisle
space at card catalogs and magazine displays shall comply with
Fig. 55. Maximum reach height shall comply with 4.2, with a
height of 48 in (1220 mm) preferred irrespective of approach
allowed.
8.5 Stacks. Minimum clear aisle width between stacks shall
comply with 4.3, with a minimum clear aisle width of 42 in (1065
mm) preferred where possible. Shelf height in stack areas is
unrestricted (see Fig. 56).
9. ACCESSIBLE TRANSIENT LODGING.
(1) Except as specified in the special technical provisions of
this section, accessible transient lodging shall comply with the
applicable requirements of 4.1 through 4.35. Transient lodging
includes facilities or portions thereof used for sleeping
accommodations, when not classed as a medical care facility.
9.1 Hotels, Motels, Inns, Boarding Houses, Dormitories, Resorts
and Other Similar Places of Transient Lodging.
9.1.1 General. All public use and common use areas are required
to be designed and constructed to comply with section 4
(Accessible Elements and Spaces: Scope and Technical
Requirements).
EXCEPTION: Sections 9.1 through 9.4 do not apply to an
establishment located within a building that contains not more
than five rooms for rent or hire and that is actually occupied
by the proprietor of such establishment as the residence of such
proprietor.
9.1.2 Accessible Units, Sleeping Rooms, and Suites. Accessible
sleeping rooms or suites that comply with the requirements of
9.2 (Requirements for Accessible Units, Sleeping Rooms, and
Suites) shall be provided in conformance with the table below.
In addition, in hotels, of 50 or more sleeping rooms or suites,
additional accessible sleeping rooms or suites that include a
roll-in shower shall also be provided in conformance with the
table below. Such accommodations shall comply with the
requirements of 9.2, 4.21, and Figure 57(a) or (b).
Number of Rooms Accessible Rooms Rooms with Roll-in Showers
1 to 25
26 to 50
51 to 75
76 to 100
101 to 150
151 to 200
201 to 300
301 to 400
401 to 500
501 to 1000
1001 and over
1
2
3
4
5
6
7
8
9
2% of total
20 plus 1 for each 100 over 1000
1
1
2
2
3
4
4, plus one for each additional 100 over 400
9.1.3 Sleeping Accommodations for Persons with Hearing
Impairments. In addition to those accessible sleeping rooms and
suites required by 9.1.2, sleeping rooms and suites that comply
with 9.3 (Visual Alarms, Notification Devices, and Telephones)
shall be provided in conformance with the following table:
9.1.4 Classes of Sleeping Accommodations.
(1) In order to provide persons with disabilities a range of
options equivalent to those available to other persons served by
the facility, sleeping rooms and suites required to be
accessible by 9.1.2 shall be dispersed among the various classes
of sleeping accommodations available to patrons of the place of
transient lodging. Factors to be considered include room size,
cost, amenities provided, and the number of beds provided.
(2) Equivalent Facilitation. For purposes of this section, it
shall be deemed equivalent facilitation if the operator of a
facility elects to limit construction of accessible rooms to
those intended for multiple occupancy, provided that such rooms
are made available at the cost of a single occupancy room to an
individual with disabilities who requests a single-occupancy
room.
9.1.5. Alterations to Accessible Units, Sleeping Rooms, and
Suites. When sleeping rooms are being altered in an existing
facility, or portion thereof, subject to the requirements of
this section, at least one sleeping room or suite that complies
with the requirements of 9.2 (Requirements for Accessible Units,
Sleeping Rooms, and Suites) shall be provided for each 25
sleeping rooms, or fraction thereof, of rooms being altered
until the number of such rooms provided equals the number
required to be accessible with 9.1.2. In addition, at least one
sleeping room or suite that complies with the requirements of
9.3 (Visual Alarms, Notification Devices, and Telephones) shall
be provided for each 25 sleeping rooms, or fraction thereof, of
rooms being altered until the number of such rooms equals the
number required to be accessible by 9.1.3.
9.2 Requirements for Accessible Units, Sleeping Rooms and
Suites.
9.2.1 General. Units, sleeping rooms, and suites required to be
accessible by 9.1 shall comply with 9.2.
9.2.2 Minimum Requirements. An accessible unit, sleeping room or
suite shall be on an accessible route complying with 4.3 and
have the following accessible elements and spaces.
(1) Accessible sleeping rooms shall have a 36 in (915 mm) clear
width maneuvering space located along both sides of a bed,
except that where two beds are provided, this requirement can be
met by providing a 36 in (915 mm) wide maneuvering space located
between the two beds.
(2) An accessible route complying with 4.3 shall connect all
accessible spaces and elements, including telephones, within the
unit, sleeping room, or suite. This is not intended to require
an elevator in multi-story units as long as the spaces
identified in 9.2.2(6) and (7) are on accessible levels and the
accessible sleeping area is suitable for dual occupancy.
(3) Doors and doorways designed to allow passage into and within
all sleeping rooms, suites or other covered units shall comply
with 4.13.
(4) If fixed or built-in storage facilities such as cabinets,
shelves, closets, and drawers are provided in accessible spaces,
at least one of each type provided shall contain storage space
complying with 4.25. Additional storage may be provided outside
of the dimensions required by 4.25.
(5) All controls in accessible units, sleeping rooms, and suites
shall comply with 4.27.
(6) Where provided as part of an accessible unit, sleeping room,
or suite, the following spaces shall be accessible and shall be
on an accessible route:
(a) the living area.
(b) the dining area.
(c) at least one sleeping area.
(d) patios, terraces, or balconies.
EXCEPTION: The requirements of 4.13.8 and 4.3.8 do not apply
where it is necessary to utilize a higher door threshold or a
change in level to protect the integrity of the unit from
wind/water damage. Where this exception results in patios,
terraces or balconies that are not at an accessible level,
equivalent facilitation shall be provided. (e.g., Equivalent
facilitation at a hotel patio or balcony might consist of
providing raised decking or a ramp to provide accessibility).
(e) at least one full bathroom (i.e., one with a water closet, a
lavatory, and a bathtub or shower).
(f) if only half baths are provided, at least one half bath. (g)
carports, garages or parking spaces.
(7) Kitchens, Kitchenettes, or Wet Bars. When provided as
accessory to a sleeping room or suite, kitchens, kitchenettes,
wet bars, or similar amenities shall be accessible. Clear floor
space for a front or parallel approach to cabinets, counters,
sinks, and appliances shall be provided to comply with 4.2.4.
Countertops and sinks shall be mounted at a maximum height of 34
in (865 mm) above the floor. At least fifty percent of shelf
space in cabinets or refrigerator/freezers shall be within the
reach ranges of 4.2.5 or 4.2.6 and space shall be designed to
allow for the operation of cabinet and/or appliance doors so
that all cabinets and appliances are accessible and usable.
Controls and operating mechanisms shall comply with 4.27.
(8) Sleeping room accommodations for persons with hearing
impairments required by 9.1 and complying with 9.3 shall be
provided in the accessible sleeping room or suite.
9.3 Visual Alarms, Notification Devices and Telephones.
9.3.1 General. In sleeping rooms required to comply with this
section, auxiliary visual alarms shall be provided and shall
comply with 4.28.4. Visual notification devices shall also be
provided in units, sleeping rooms and suites to alert room
occupants of incoming telephone calls and a door knock or bell.
Notification devices shall not be connected to auxiliary visual
alarm signal appliances. Permanently installed telephones shall
have volume controls complying with 4.31.5; an accessible
electrical outlet within 4 ft (1220 mm) of a telephone
connection shall be provided to facilitate the use of a text
telephone.
9.3.2 Equivalent Facilitation. For purposes of this section,
equivalent facilitation shall include the installation of
electrical outlets (including outlets connected to a facility's
central alarm system) and telephone wiring in sleeping rooms and
suites to enable persons with hearing impairments to utilize
portable visual alarms and communication devices provided by the
operator of the facility.
9.4 Other Sleeping Rooms and Suites. Doors and doorways designed
to allow passage into and within all sleeping units or other
covered units shall comply with 4.13.5.
9.5 Transient Lodging in Homeless Shelters, Halfway Houses,
Transient Group Homes, and Other Social Service Establishments.
9.5.1 New Construction. In new construction all public use and
common use areas are required to be designed and constructed to
comply with section 4. At least one of each type of amenity
(such as washers, dryers and similar equipment installed for the
use of occupants) in each common area shall be accessible and
shall be located on an accessible route to any accessible unit
or sleeping accommodation.
EXCEPTION: Where elevators are not provided as allowed in
4.1.3(5), accessible amenities are not required on inaccessible
floors as long as one of each type is provided in common areas
on accessible floors.
9.5.2 Alterations.
(1) Social service establishments which are not homeless
shelters:
(a) The provisions of 9.5.3 and 9.1.5 shall apply to sleeping
rooms and beds.
(b) Alteration of other areas shall be consistent with the new
construction provisions of 9.5.1.
(2) Homeless shelters. If the following elements are altered,
the following requirements apply:
(a) at least one public entrance shall allow a person with
mobility impairments to approach, enter and exit including a
minimum clear door width of 32 in (815 mm).
(b) sleeping space for homeless persons as provided in the
scoping provisions of 9.1.2 shall include doors to the sleeping
area with a minimum clear width of 32 in (815 mm) and
maneuvering space around the beds for persons with mobility
impairments complying with 9.2.2(1).
(c) at least one toilet room for each gender or one unisex
toilet room shall have a minimum clear door width of 32 in (815
mm), minimum turning space complying with 4.2.3, one water
closet complying with 4.16, one lavatory complying with 4.19 and
the door shall have a privacy latch; and, if provided, at least
one tub or shower shall comply with 4.20 or 4.21, respectively.
(d) at least one common area which a person with mobility
impairments can approach, enter and exit including a minimum
clear door width of 32 in (815 mm).
(e) at least one route connecting elements (a), (b), (c) and (d)
which a person with mobility impairments can use including
minimum clear width of 36 in (915 mm), passing space complying
with 4.3.4, turning space complying with 4.2.3 and changes in
levels complying with 4.3.8.
(f) homeless shelters can comply with the provisions of (a)-(e)
by providing the above elements on one accessible floor.
9.5.3. Accessible Sleeping Accommodations in New Construction.
Accessible sleeping rooms shall be provided in conformance with
the table in 9.1.2 and shall comply with 9.2 Accessible Units,
Sleeping Rooms and Suites (where the items are provided).
Additional sleeping rooms that comply with 9.3 Sleeping
Accommodations for Persons with Hearing Impairments shall be
provided in conformance with the table provided in 9.1.3.
In facilities with multi-bed rooms or spaces, a percentage of
the beds equal to the table provided in 9.1.2 shall comply with
9.2.2(1).
10 TRANSPORTATION FACILITIES
10.1 General. Every station, bus stop, bus stop pad, terminal,
building or other transportation facility, shall comply with the
applicable provisions of 4.1 through 4.35, sections 5 through 9,
and the applicable provisions of this section. The exceptions
for elevators in 4.1.3(5) exception 1 and 4.1.6(1)(k) do not
apply to a terminal, depot, or other station used for specified
public transportation, or an airport passenger terminal, or
facilities subject to Title II.
10.2 Bus Stops and Terminals.
10.2.1 New Construction.
(1) Where new bus stop pads are constructed at bus stops, bays
or other areas where a lift or ramp is to be deployed, they
shall have a firm, stable surface; a minimum clear length of 96
inches (measured from the curb or vehicle roadway edge) and a
minimum clear width of 60 inches (measured parallel to the
vehicle roadway) to the maximum extent allowed by legal or site
constraints; and shall be connected to streets, sidewalks or
pedestrian paths by an accessible route complying with 4.3 and
4.4. The slope of the pad parallel to the roadway shall, to the
extent practicable, be the same as the roadway. For water
drainage, a maximum slope of 1:50 (2%) perpendicular to the
roadway is allowed.
(2) Where provided, new or replaced bus shelters shall be
installed or positioned so as to permit a wheelchair or mobility
aid user to enter from the public way and to reach a location,
having a minimum clear floor area of 30 inches by 48 inches,
entirely within the perimeter of the shelter. Such shelters
shall be connected by an accessible route to the boarding area
provided under paragraph (1) of this section.
(3) Where provided, all new bus route identification signs shall
comply with 4.30.5. In addition, to the maximum extent
practicable, all new bus route identification signs shall comply
with 4.30.2 and 4.30.3. Signs that are sized to the maximum
dimensions permitted under legitimate local, state or federal
regulations or ordinances shall be considered in compliance with
4.30.2 and 4.30.3 for purposes of this section.
EXCEPTION: Bus schedules, timetables, or maps that are posted at
the bus stop or bus bay are not required to comply with this
provision.
10.2.2 Bus Stop Siting and Alterations.
(1) Bus stop sites shall be chosen such that, to the maximum
extent practicable, the areas where lifts or ramps are to be
deployed comply with section 10.2.1(1) and (2).
(2) When new bus route identification signs are installed or old
signs are replaced, they shall comply with the requirements of
10.2.1(3).
10.3 Fixed Facilities and Stations.
10.3.1 New Construction. New stations in rapid rail, light rail,
commuter rail, intercity bus, intercity rail, high speed rail,
and other fixed guideway systems (e.g., automated guideway
transit, monorails, etc.) shall comply with the following
provisions, as applicable.
(1) Elements such as ramps, elevators or other circulation
devices, fare vending or other ticketing areas, and fare
collection areas shall be placed to minimize the distance which
wheelchair users and other persons who cannot negotiate steps
may have to travel compared to the general public. The
circulation path, including an accessible entrance and an
accessible route, for persons with disabilities shall, to the
maximum extent practicable, coincide with the circulation path
for the general public. Where the circulation path is different,
signage complying with 4.30.1, 4.30.2, 4.30.3, 4.30.5, and
4.30.7(1) shall be provided to indicate direction to and
identify the accessible entrance and accessible route.
(2) In lieu of compliance with 4.1.3(8), at least one entrance
to each station shall comply with 4.14, Entrances. If different
entrances to a station serve different transportation fixed
routes or groups of fixed routes, at least one entrance serving
each group or route shall comply with 4.14, Entrances. All
accessible entrance shall, to the maximum extent practicable,
coincide with those used by the majority of the general public.
(3) Direct connections to commercial, retail, or residential
facilities shall have an accessible route complying with 4.3
from the point of connection to boarding platforms and all
transportation system elements used by the public. Any elements
provided to facilitate future direct connections shall be on an
accessible route connecting boarding platforms and all
transportation system elements used by the public.
(4) Where signs are provided at entrances to stations
identifying the station or the entrance, or both, at least one
sign at each entrance shall comply with 4.30.4 and 4.30.6. Such
signs shall be placed in uniform locations at entrances within
the transit system to the maximum extent practicable.
EXCEPTION: Where the station has no defined entrance, but
signage is provided, then the accessible signage shall be placed
in a central location.
(5) Stations covered by this section shall have identification
signs complying with 4.30.1, 4.30.2, 4.30.3, and 4.30.5. Signs
shall be placed at frequent intervals and shall be clearly
visible from within the vehicle on both sides when not
obstructed by another train. When station identification signs
are placed close to vehicle windows (i.e., on the side opposite
from boarding) each shall have the top of the highest letter or
symbol below the top of the vehicle window and the bottom of the
lowest letter or symbol above the horizontal mid-line of the
vehicle window.
(6) Lists of stations, routes, or destinations served by the
station and located on boarding areas, platforms, or mezzanines
shall comply with 4.30.1, 4.30.2, 4.30.3, and 4.30.5. A minimum
of one sign identifying the specific station and complying with
4.30.4 and 4.30.6 shall be provided on each platform or boarding
area. All signs referenced in this paragraph shall, to the
maximum extent practicable, be placed in uniform locations
within the transit system.
(7)* Automatic fare vending, collection and adjustment (e.g.,
add-fare) systems shall comply with 4.34.2, 4.34.3, 4.34.4, and
4.34.5. At each accessible entrance such devices shall be
located on an accessible route. If self-service fare collection
devices are provided for the use of the general public, at least
one accessible device for entering, and at least one for
exiting, unless one device serves both functions, shall be
provided at each accessible point of entry or exit. Accessible
fare collection devices shall have a minimum clear opening width
of 32 in; shall permit passage of a wheelchair; and, where
provided, coin or card slots and controls necessary for
operation shall comply with 4.27. Gates which must be pushed
open by wheelchair or mobility aid users shall have a smooth
continuous surface extending from 2 inches above the floor to 27
inches above the floor and shall comply with 4.13. Where the
circulation path does not coincide with that used by the general
public, accessible fare collection systems shall be located at
or adjacent to the accessible point of entry or exit.
(8) Platform edges bordering a drop-off and not protected by
platform screens or guard rails shall have a detectable warning.
Such detectable warnings shall comply with 4.29.2 and shall be
24 inches wide running the full length of the platform drop-off.
(9) In stations covered by this section, rail-to-platform height
in new stations shall be coordinated with the floor height of
new vehicles so that the vertical difference, measured when the
vehicle is at rest, is within plus or minus 5/8 inch under
normal passenger load conditions. For rapid rail, light rail,
commuter rail, high speed rail, and intercity rail systems in
new stations, the horizontal gap, measured when the new vehicle
is at rest, shall be no greater than 3 in. For slow moving
automated guideway "people mover" transit systems, the
horizontal gap in new stations shall be no greater than 1 in.
EXCEPTION 1: Existing vehicles operating in new stations may
have a vertical difference with respect to the new platform
within plus or minus 1-1/2 in.
EXCEPTION 2: In light rail, commuter rail and intercity rail
systems where it is not operationally or structurally feasible
to meet the horizontal gap or vertical difference requirements,
mini-high platforms, car-borne or platform-mounted lifts, ramps
or bridge plates, or similar manually deployed devices, meeting
the applicable requirements of 36 C.F.R. part 1192, or 49 C.F.R.
part 38 shall suffice.
(10) Stations shall not be designed or constructed so as to
require persons with disabilities to board or alight from a
vehicle at a location other than one used by the general public.
(11) Illumination levels in the areas where signage is located
shall be uniform and shall minimize glare on signs. Lighting
along circulation routes shall be of a type and configuration to
provide uniform illumination.
(12) Text Telephones: The following shall be provided in
accordance with 4.31.9:
(a) If an interior public pay telephone is provided in a transit
facility (as defined by the Department of Transportation) at
least one interior public text telephone shall be provided in
the station.
(b) Where four or more public pay telephones serve a particular
entrance to a rail station and at least one is in an interior
location, at least one interior public text telephone shall be
provided to serve that entrance. Compliance with this section
constitutes compliance with section 4.1.3(17)(c).
(13) Where it is necessary to cross tracks to reach boarding
platforms, the route surface shall be level and flush with the
rail top at the outer edge and between rails, except for a
maximum 2-1/2 inch gap on the inner edge of each rail to permit
passage of wheel flanges. Such crossings shall comply with
4.29.5. Where gap reduction is not practicable, an above-grade
or below-grade accessible route shall be provided.
(14) Where public address systems are provided to convey
information to the public in terminals, stations, or other fixed
facilities, a means of conveying the same or equivalent
information to persons with hearing loss or who are deaf shall
be provided.
(15) Where clocks are provided for use by the general public,
the clock face shall be uncluttered so that its elements are
clearly visible. Hands, numerals, and/or digits shall contrast
with the background either light-on-dark or dark-on-light. Where
clocks are mounted overhead, numerals and/or digits shall comply
with 4.30.3. Clocks shall be placed in uniform locations
throughout the facility and system to the maximum extent
practicable.
(16) Where provided in below grade stations, escalators shall
have a minimum clear width of 32 inches. At the top and bottom
of each escalator run, at least two contiguous treads shall be
level beyond the comb plate before the risers begin to form. All
escalator treads shall be marked by a strip of clearly
contrasting color, 2 inches in width, placed parallel to and on
the nose of each step. The strip shall be of a material that is
at least as slip resistant as the remainder of the tread. The
edge of the tread shall be apparent from both ascending and
descending directions.
(17) Where provided, elevators shall be glazed or have
transparent panels to allow an unobstructed view both in to and
out of the car. Elevators shall comply with 4.10.
EXCEPTION: Elevator cars with a clear floor area in which a 60
inch diameter circle can be inscribed may be substituted for the
minimum car dimensions of 4.10, Fig. 22.
(18) Where provided, ticketing areas shall permit persons with
disabilities to obtain a ticket and check baggage and shall
comply with 7.2.
(19) Where provided, baggage check-in and retrieval systems
shall be on an accessible route complying with 4.3, and shall
have space immediately adjacent complying with 4.2. If
unattended security barriers are provided, at least one gate
shall comply with 4.13. Gates which must be pushed open by
wheelchair or mobility aid users shall have a smooth continuous
surface extending from 2 inches above the floor to 27 inches
above the floor.
10.3.2 Existing Facilities: Key Stations.
(1) Rapid, light and commuter rail key stations, as defined
under criteria established by the Department of Transportation
in subpart C of 49 CFR part 37 and existing intercity rail
stations shall provide at least one accessible route from an
accessible entrance to those areas necessary for use of the
transportation system.
(2) The accessible route required by 10.3.2(1) shall include the
features specified in 10.3.1(1), (4)-(9), (11)-(15), and
(17)-(19).
(3) Where technical infeasability in existing stations requires
the accessible route to lead from the public way to a paid area
of the transit system, an accessible fare collection system,
complying with 10.3.1(7), shall be provided along such
accessible route.
(4) In light rail, rapid rail and commuter rail key stations,
the platform or a portion thereof and the vehicle floor shall be
coordinated so that the vertical difference, measured when the
vehicle is at rest, is within plus or minus 1-1/2 inches under
all normal passenger load conditions, and the horizontal gap,
measured when the vehicle is at rest, is no greater than 3
inches for at least one door of each vehicle or car required to
be accessible by 49 CFR part 37.
EXCEPTION 1: Existing vehicles retrofitted to meet the
requirements of 49 CFR 37.93 (one-car-per-train rule) shall be
coordinated with the platform such that, for at least one door,
the vertical difference between the vehicle floor and the
platform, measured when the vehicle is at rest with 50% normal
passenger capacity, is within plus or minus 2 inches and the
horizontal gap is no greater than 4 inches.
EXCEPTION 2: Where it is not structurally or operationally
feasible to meet the horizontal gap or vertical difference
requirements, mini-high platforms, car-borne or platform mounted
lifts, ramps or bridge plates, or similar manually deployed
devices, meeting the applicable requirements of 36 CFR part
1192, or 49 CFR part 38, shall suffice.
(5) New direct connections to commercial, retail, or residential
facilities shall, to the maximum extent feasible, have an
accessible route complying with 4.3 from the point of connection
to boarding platforms and all transportation system elements
used by the public. Any elements provided to facilitate future
direct connections shall be on an accessible route connecting
boarding platforms and all transportation system elements used
by the public.
10.3.3 Existing Facilities: Alterations.
(1) For the purpose of complying with 4.1.6(2) Alterations to an
Area Containing a Primary Function, an area of primary function
shall be as defined by applicable provisions of 49 C.F.R.
37.43(c) (Department of Transportation's ADA Rule) or 28 C.F.R.
36.403 (Department of Justice's ADA Rule).
10.4 Airports.
10.4.1 New Construction.
(1) Elements such as ramps, elevators or other vertical
circulation devices, ticketing areas, security checkpoints, or
passenger waiting areas shall be placed to minimize the distance
which wheelchair users and other persons who cannot negotiate
steps may have to travel compared to the general public.
(2) The circulation path, including an accessible entrance and
an accessible route, for persons with disabilities shall, to the
maximum extent practicable, coincide with the circulation path
for the general public. Where the circulation path is different,
directional signage complying with 4.30.1, 4.30.2, 4.30.3 and
4.30.5 shall be provided which indicates the location of the
nearest accessible entrance and its accessible route.
(3) Ticketing areas shall permit persons with disabilities to
obtain a ticket and check baggage and shall comply with 7.2.
(4) Where public pay telephones are provided, and at least one
is at an interior location, a public text telephone shall be
provided in compliance with 4.31.9. Additionally, if four or
more public pay telephones are located in any of the following
locations, at least one public text telephone shall also be
provided in that location:
(a) a main terminal outside the security areas;
(b) a concourse within the security areas; or
(c) a baggage claim area in a terminal.
Compliance with this section constitutes compliance with section
4.1.3(17)(c).
(5) Baggage check-in and retrieval systems shall be on an
accessible route complying with 4.3, and shall have space
immediately adjacent complying with 4.2.4. If unattended
security barriers are provided, at least one gate shall comply
with 4.13. Gates which must be pushed open by wheelchair or
mobility aid users shall have a smooth continuous surface
extending from 2 inches above the floor to 27 inches above the
floor.
(6) Terminal information systems which broadcast information to
the general public through a public address system shall provide
a means to provide the same or equivalent information to persons
with a hearing loss or who are deaf. Such methods may include,
but are not limited to, visual paging systems using video
monitors and computer technology. For persons with certain types
of hearing loss such methods may include, but are not limited
to, an assistive listening system complying with 4.33.7.
(7) Where clocks are provided for use by the general public the
clock face shall be uncluttered so that its elements are clearly
visible. Hands, numerals, and/or digits shall contrast with
their background either light-on-dark or dark-on-light. Where
clocks are mounted overhead, numerals and/or digits shall comply
with 4.30.3. Clocks shall be placed in uniform locations
throughout the facility to the maximum extent practicable.
(8) Security Systems. (Reserved).
10.5 Boat and Ferry Docks. (Reserved).
APPENDIX
This appendix contains materials of an advisory nature and
provides additional information that should help the reader to
understand the minimum requirements of the guidelines or to
design buildings or facilities for greater accessibility. The
paragraph numbers correspond to the sections or paragraphs of
the guideline to which the material relates and are therefore
not consecutive (for example, A4.2.1 contains additional
information relevant to 4.2.1). Sections of the guidelines for
which additional material appears in this appendix have been
indicated by an asterisk. Nothing in this appendix shall in any
way obviate any obligation to comply with the requirements of
the guidelines itself.
A2.2 Equivalent Facilitation. Specific examples of equivalent
facilitation are found in the following sections:
4.1.6(3)(c) Elevators in Alterations
4.31.9 Text Telephones
7.2 Sales and Service Counters, Teller Windows, Information
Counters
9.1.4 Classes of Sleeping Accommodations
9.2.2(6)(d) Requirements for Accessible Units, Sleeping Rooms,
and Suites
A4.1.1 Application.
A4.1.1(3) Areas Used Only by Employees as Work Areas. Where
there are a series of individual work stations of the same type
(e.g., laboratories, service counters, ticket booths), 5%, but
not less than one, of each type of work station should be
constructed so that an individual with disabilities can maneuver
within the work stations. Rooms housing individual offices in a
typical office building must meet the requirements of the
guidelines concerning doors, accessible routes, etc. but do not
need to allow for maneuvering space around individual desks.
Modifications required to permit maneuvering within the work
area may be accomplished as a reasonable accommodation to
individual employees with disabilities under Title I of the ADA.
Consideration should also be given to placing shelves in
employee work areas at a convenient height for accessibility or
installing commercially available shelving that is adjustable so
that reasonable accommodations can be made in the future.
If work stations are made accessible they should comply with the
applicable provisions of 4.2 through 4.35.
A4.1.2 Accessible Sites and Exterior Facilities: New
Construction.
A4.1.2(5)(e) Valet Parking. Valet parking is not always usable
by individuals with disabilities. For instance, an individual
may use a type of vehicle controls that render the regular
controls inoperable or the driver's seat in a van may be
removed. In these situations, another person cannot park the
vehicle. It is recommended that some self-parking spaces be
provided at valet parking facilities for individuals whose
vehicles cannot be parked by another person and that such spaces
be located on an accessible route to the entrance of the
facility.
A4.1.3 Accessible Buildings: New Construction.
A4.1.3(5) Only full passenger elevators are covered by the
accessibility provisions of 4.10. Materials and equipment
hoists, freight elevators not intended for passenger use,
dumbwaiters, and construction elevators are not covered by these
guidelines. If a building is exempt from the elevator
requirement, it is not necessary to provide a platform lift or
other means of vertical access in lieu of an elevator.
Under Exception 4, platform lifts are allowed where existing
conditions make it impractical to install a ramp or elevator.
Such conditions generally occur where it is essential to provide
access to small raised or lowered areas where space may not be
available for a ramp. Examples include, but are not limited to,
raised pharmacy platforms, commercial offices raised above a
sales floor, or radio and news booths.
A4.1.3(9) Supervised automatic sprinkler systems have built in
signals for monitoring features of the system such as the
opening and closing of water control valves, the power supplies
for needed pumps, water tank levels, and for indicating
conditions that will impair the satisfactory operation of the
sprinkler system. Because of these monitoring features,
supervised automatic sprinkler systems have a high level of
satisfactory performance and response to fire conditions.
A4.1.3(10) If an odd number of drinking fountains is provided on
a floor, the requirement in 4.1.3(10)(b) may be met by rounding
down the odd number to an even number and calculating 50% of the
even number. When more than one drinking fountain on a floor is
required to comply with 4.15, those fountains should be
dispersed to allow wheelchair users convenient access. For
example, in a large facility such as a convention center that
has water fountains at several locations on a floor, the
accessible water fountains should be located so that wheelchair
users do not have to travel a greater distance than other people
to use a drinking fountain.
A4.1.3(17)(b) In addition to the requirements of section
4.1.3(17)(b), the installation of additional volume controls is
encouraged. Volume controls may be installed on any telephone.
A4.1.3(19)(a) Readily removable or folding seating units may be
installed in lieu of providing an open space for wheelchair
users. Folding seating units are usually two fixed seats that
can be easily folded into a fixed center bar to allow for one or
two open spaces for wheelchair users when necessary. These units
are more easily adapted than removable seats which generally
require the seat to be removed in advance by the facility
management.
Either a sign or a marker placed on seating with removable or
folding arm rests is required by this section. Consideration
should be given for ensuring identification of such seats in a
darkened theater. For example, a marker which contrasts (light
on dark or dark on light) and which also reflects light could be
placed on the side of such seating so as to be visible in a
lighted auditorium and also to reflect light from a flashlight.
A4.1.6 Accessible Buildings: Alterations.
A4.1.6(1)(h) When an entrance is being altered, it is preferable
that those entrances being altered be made accessible to the
extent feasible.
A4.2 Space Allowances and Reach Ranges.
A4.2.1 Wheelchair Passage Width.
(1) Space Requirements for Wheelchairs. Many persons who use
wheelchairs need a 30 in (760 mm) clear opening width for
doorways, gates, and the like, when the latter are entered
head-on. If the person is unfamiliar with a building, if
competing traffic is heavy, if sudden or frequent movements are
needed, or if the wheelchair must be turned at an opening, then
greater clear widths are needed. For most situations, the
addition of an inch of leeway on either side is sufficient.
Thus, a minimum clear width of 32 in (815 mm) will provide
adequate clearance. However, when an opening or a restriction in
a passageway is more than 24 in (610 mm) long, it is essentially
a passageway and must be at least 36 in (915 mm) wide.
(2) Space Requirements for Use of Walking Aids. Although people
who use walking aids can maneuver through clear width openings
of 32 in (815 mm), they need 36 in (915 mm) wide passageways and
walks for comfortable gaits. Crutch tips, often extending down
at a wide angle, are a hazard in narrow passageways where they
might not be seen by other pedestrians. Thus, the 36 in (915 mm)
width provides a safety allowance both for the person with a
disability and for others.
(3) Space Requirements for Passing. Able-bodied persons in
winter clothing, walking straight ahead with arms swinging, need
32 in (815 mm) of width, which includes 2 in (50 mm) on either
side for sway, and another 1 in (25 mm) tolerance on either side
for clearing nearby objects or other pedestrians. Almost all
wheelchair users and those who use walking aids can also manage
within this 32 in (815 mm) width for short distances. Thus, two
streams of traffic can pass in 64 in (1625 mm) in a comfortable
flow. Sixty inches (1525 mm) provides a minimum width for a
somewhat more restricted flow. If the clear width is less than
60 in (1525 mm), two wheelchair users will not be able to pass
but will have to seek a wider place for passing. Forty-eight
inches (1220 mm) is the minimum width needed for an ambulatory
person to pass a nonambulatory or semi-ambulatory person. Within
this 48 in (1220 mm) width, the ambulatory person will have to
twist to pass a wheelchair user, a person with a service animal,
or a semi-ambulatory person. There will be little leeway for
swaying or missteps (see Fig. A1).
A4.2.3 Wheelchair Turning Space.
These guidelines specify a minimum space of 60 in (1525 mm)
diameter or a 60 in by 60 in (1525 mm by 1525 mm) T-shaped space
for a pivoting 180-degree turn of a wheelchair. This space is
usually satisfactory for turning around, but many people will
not be able to turn without repeated tries and bumping into
surrounding objects. The space shown in Fig. A2 will allow most
wheelchair users to complete U-turns without difficulty.
A4.2.4 Clear Floor or Ground Space for Wheelchairs. The
wheelchair and user shown in Fig. A3 represent typical
dimensions for a large adult male. The space requirements in
this guideline are based upon maneuvering clearances that will
accommodate most wheelchairs. Fig. A3 provides a uniform
reference for design not covered by this guideline.
A4.2.5 & A4.2.6 Reach. Reach ranges for persons seated in
wheelchairs may be further clarified by Fig. A3(a). These
drawings approximate in the plan view the information shown in
Fig. 4, 5, and 6.
A4.3 Accessible Route.
A4.3.1 General.
(1) Travel Distances. Many people with mobility impairments can
move at only very slow speeds; for many, traveling 200 ft (61 m)
could take about 2 minutes. This assumes a rate of about 1.5
ft/s (455 mm/s) on level ground. It also assumes that the
traveler would move continuously. However, on trips over 100 ft
(30 m), disabled people are apt to rest frequently, which
substantially increases their trip times. Resting periods of 2
minutes for every 100 ft (30 m) can be used to estimate travel
times for people with severely limited stamina. In inclement
weather, slow progress and resting can greatly increase a
disabled person's exposure to the elements.
(2) Sites. Level, indirect routes or those with running slopes
lower than 1:20 can sometimes provide more convenience than
direct routes with maximum allowable slopes or with ramps.
A4.3.10 Egress. Because people with disabilities may visit, be
employed or be a resident in any building, emergency management
plans with specific provisions to ensure their safe evacuation
also play an essential role in fire safety and life safety.
A4.3.11.3 Stairway Width. A 48 in (1220 mm) wide exit stairway
is needed to allow assisted evacuation (e.g., carrying a person
in a wheelchair) without encroaching on the exit path for
ambulatory persons.
A4.3.11.4 Two-way Communication. It is essential that emergency
communication not be dependent on voice communications alone
because the safety of people with hearing or speech impairments
could be jeopardized. The visible signal requirement could be
satisfied with something as simple as a button in the area of
rescue assistance that lights, indicating that help is on the
way, when the message is answered at the point of entry.
A4.4 Protruding Objects.
A4.4.1 General. Service animals are trained to recognize and
avoid hazards. However, most people with severe impairments of
vision use the long cane as an aid to mobility. The two
principal cane techniques are the touch technique, where the
cane arcs from side to side and touches points outside both
shoulders; and the diagonal technique, where the cane is held in
a stationary position diagonally across the body with the cane
tip touching or just above the ground at a point outside one
shoulder and the handle or grip extending to a point outside the
other shoulder. The touch technique is used primarily in
uncontrolled areas, while the diagonal technique is used
primarily in certain limited, controlled, and familiar
environments. Cane users are often trained to use both
techniques.
Potential hazardous objects are noticed only if they fall within
the detection range of canes (see Fig. A4). Visually impaired
people walking toward an object can detect an overhang if its
lowest surface is not higher than 27 in (685 mm). When walking
alongside protruding objects, they cannot detect overhangs.
Since proper cane and service animal techniques keep people away
from the edge of a path or from walls, a slight overhang of no
more than 4 in (100 mm) is not hazardous.
A4.5 Ground and Floor Surfaces.
A4.5.1 General. People who have difficulty walking or
maintaining balance or who use crutches, canes, or walkers, and
those with restricted gaits are particularly sensitive to
slipping and tripping hazards. For such people, a stable and
regular surface is necessary for safe walking, particularly on
stairs. Wheelchairs can be propelled most easily on surfaces
that are hard, stable, and regular. Soft loose surfaces such as
shag carpet, loose sand or gravel, wet clay, and irregular
surfaces such as cobblestones can significantly impede
wheelchair movement.
Slip resistance is based on the frictional force necessary to
keep a shoe heel or crutch tip from slipping on a walking
surface under conditions likely to be found on the surface.
While the dynamic coefficient of friction during walking varies
in a complex and non-uniform way, the static coefficient of
friction, which can be measured in several ways, provides a
close approximation of the slip resistance of a surface.
Contrary to popular belief, some slippage is necessary to
walking, especially for persons with restricted gaits; a truly
"non-slip" surface could not be negotiated.
The Occupational Safety and Health Administration recommends
that walking surfaces have a static coefficient of friction of
0.5. A research project sponsored by the Architectural and
Transportation Barriers Compliance Board (Access Board)
conducted tests with persons with disabilities and concluded
that a higher coefficient of friction was needed by such
persons. A static coefficient of friction of 0.6 is recommended
for accessible routes and 0.8 for ramps.
It is recognized that the coefficient of friction varies
considerably due to the presence of contaminants, water, floor
finishes, and other factors not under the control of the
designer or builder and not subject to design and construction
guidelines and that compliance would be difficult to measure on
the building site. Nevertheless, many common building materials
suitable for flooring are now labeled with information on the
static coefficient of friction. While it may not be possible to
compare one product directly with another, or to guarantee a
constant measure, builders and designers are encouraged to
specify materials with appropriate values. As more products
include information on slip resistance, improved uniformity in
measurement and specification is likely. The Access Board's
advisory guidelines on Slip Resistant Surfaces provides
additional information on this subject.
Cross slopes on walks and ground or floor surfaces can cause
considerable difficulty in propelling a wheelchair in a straight
line.
A4.5.3 Carpet. Much more needs to be done in developing both
quantitative and qualitative criteria for carpeting (i.e.,
problems associated with texture and weave need to be studied).
However, certain functional characteristics are well
established. When both carpet and padding are used, it is
desirable to have minimum movement (preferably none) between the
floor and the pad and the pad and the carpet which would allow
the carpet to hump or warp. In heavily trafficked areas, a
thick, soft (plush) pad or cushion, particularly in combination
with long carpet pile, makes it difficult for individuals in
wheelchairs and those with other ambulatory disabilities to get
about. Firm carpeting can be achieved through proper selection
and combination of pad and carpet, sometimes with the
elimination of the pad or cushion, and with proper installation.
Carpeting designed with a weave that causes a zig-zag effect
when wheeled across is strongly discouraged.
A4.6 Parking and Passenger Loading Zones.
A4.6.3 Parking Spaces. The increasing use of vans with
side-mounted lifts or ramps by persons with disabilities has
necessitated some revisions in specifications for parking spaces
and adjacent access aisles. The typical accessible parking space
is 96 in (2440 mm) wide with an adjacent 60 in (1525 mm) access
aisle. However, this aisle does not permit lifts or ramps to be
deployed and still leave room for a person using a wheelchair or
other mobility aid to exit the lift platform or ramp. In tests
conducted with actual lift/van/wheelchair combinations, (under a
Board-sponsored Accessible Parking and Loading Zones Project)
researchers found that a space and aisle totaling almost 204 in
(5180 mm) wide was needed to deploy a lift and exit
conveniently. The "van accessible" parking space required by
these guidelines provides a 96 in (2440 mm) wide space with a 96
in (2440 mm) adjacent access aisle which is just wide enough to
maneuver and exit from a side mounted lift. If a 96 in (2440 mm)
access aisle is placed between two spaces, two "van accessible"
spaces are created. Alternatively, if the wide access aisle is
provided at the end of a row (an area often unused), it may be
possible to provide the wide access aisle without additional
space (see Fig. A5(a)).
A sign is needed to alert van users to the presence of the wider
aisle, but the space is not intended to be restricted only to
vans.
"Universal" Parking Space Design. An alternative to the
provision of a percentage of spaces with a wide aisle, and the
associated need to include additional signage, is the use of
what has been called the "universal" parking space design. Under
this design, all accessible spaces are 132 in (3350 mm) wide
with a 60 in (1525 mm) access aisle (see Fig. A5(b)). One
advantage to this design is that no additional signage is needed
because all spaces can accommodate a van with a side-mounted
lift or ramp. Also, there is no competition between cars and
vans for spaces since all spaces can accommodate either.
Furthermore, the wider space permits vehicles to park to one
side or the other within the 132 in (3350 mm) space to allow
persons to exit and enter the vehicle on either the driver or
passenger side, although, in some cases, this would require
exiting or entering without a marked access aisle.
An essential consideration for any design is having the access
aisle level with the parking space. Since a person with a
disability, using a lift or ramp, must maneuver within the
access aisle, the aisle cannot include a ramp or sloped area.
The access aisle must be connected to an accessible route to the
appropriate accessible entrance of a building or facility. The
parking access aisle must either blend with the accessible route
or have a curb ramp complying with 4.7. Such a curb ramp opening
must be located within the access aisle boundaries, not within
the parking space boundaries. Unfortunately, many facilities are
designed with a ramp that is blocked when any vehicle parks in
the accessible space. Also, the required dimensions of the
access aisle cannot be restricted by planters, curbs or wheel
stops.
A4.6.4 Signage. Signs designating parking places for disabled
people can be seen from a driver's seat if the signs are mounted
high enough above the ground and located at the front of a
parking space.
A4.6.5 Vertical Clearance. High-top vans, which disabled people
or transportation services often use, require higher clearances
in parking garages than automobiles.
A4.8 Ramps.
A4.8.1 General. Ramps are essential for wheelchair users if
elevators or lifts are not available to connect different
levels. However, some people who use walking aids have
difficulty with ramps and prefer stairs.
A4.8.2 Slope and Rise. Ramp slopes between 1:16 and 1:20 are
preferred. The ability to manage an incline is related to both
its slope and its length. Wheelchair users with disabilities
affecting their arms or with low stamina have serious difficulty
using inclines. Most ambulatory people and most people who use
wheelchairs can manage a slope of 1:16. Many people cannot
manage a slope of 1:12 for 30 ft (9 m).
A4.8.4 Landings. Level landings are essential toward maintaining
an aggregate slope that complies with these guidelines. A ramp
landing that is not level causes individuals using wheelchairs
to tip backward or bottom out when the ramp is approached.
A4.8.5 Handrails. The requirements for stair and ramp handrails
in this guideline are for adults. When children are principal
users in a building or facility, a second set of handrails at an
appropriate height can assist them and aid in preventing
accidents.
A4.9 Stairs.
A4.9.1 Minimum Number. Only interior and exterior stairs
connecting levels that are not connected by an elevator, ramp,
or other accessible means of vertical access have to comply with
4.9.
A4.10 Elevators.
A4.10.6 Door Protective and Reopening Device. The required door
reopening device would hold the door open for 20 seconds if the
doorway remains obstructed. After 20 seconds, the door may begin
to close. However, if designed in accordance with ASME
A17.1-1990, the door closing movement could still be stopped if
a person or object exerts sufficient force at any point on the
door edge.
A4.10.7 Door and Signal Timing for Hall Calls. This paragraph
allows variation in the location of call buttons, advance time
for warning signals, and the door-holding period used to meet
the time requirement.
A4.10.12 Car Controls. Industry-wide standardization of elevator
control panel design would make all elevators significantly more
convenient for use by people with severe visual impairments. In
many cases, it will be possible to locate the highest control on
elevator panels within 48 in (1220 mm) from the floor.
A4.10.13 Car Position Indicators. A special button may be
provided that would activate the audible signal within the given
elevator only for the desired trip, rather than maintaining the
audible signal in constant operation.
A4.10.14 Emergency Communications. A device that requires no
handset is easier to use by people who have difficulty reaching.
Also, small handles on handset compartment doors are not usable
by people who have difficulty grasping.
Ideally, emergency two-way communication systems should provide
both voice and visual display intercommunication so that persons
with hearing impairments and persons with vision impairments can
receive information regarding the status of a rescue. A voice
intercommunication system cannot be the only means of
communication because it is not accessible to people with speech
and hearing impairments. While a voice intercommunication system
is not required, at a minimum, the system should provide both an
audio and visual indication that a rescue is on the way.
A4.11 Platform Lifts (Wheelchair Lifts).
A4.11.2 Other Requirements. Inclined stairway chairlifts, and
inclined and vertical platform lifts (wheelchair lifts) are
available for short-distance, vertical transportation of people
with disabilities. Care should be taken in selecting lifts as
some lifts are not equally suitable for use by both wheelchair
users and semi-ambulatory individuals.
A4.12 Windows.
A4.12.1 General. Windows intended to be operated by occupants in
accessible spaces should comply with 4.12.
A4.12.2 Window Hardware. Windows requiring pushing, pulling, or
lifting to open (for example, double-hung, sliding, or casement
and awning units without cranks) should require no more than 5
lbf (22.2 N) to open or close. Locks, cranks, and other window
hardware should comply with 4.27.
A4.13 Doors.
A4.13.8 Thresholds at Doorways. Thresholds and surface height
changes in doorways are particularly inconvenient for wheelchair
users who also have low stamina or restrictions in arm movement
because complex maneuvering is required to get over the level
change while operating the door.
A4.13.9 Door Hardware. Some disabled persons must push against a
door with their chair or walker to open it. Applied kickplates
on doors with closers can reduce required maintenance by
withstanding abuse from wheelchairs and canes. To be effective,
they should cover the door width, less approximately 2 in (51
mm), up to a height of 16 in (405 mm) from its bottom edge and
be centered across the width of the door.
A4.13.10 Door Closers. Closers with delayed action features give
a person more time to maneuver through doorways. They are
particularly useful on frequently used interior doors such as
entrances to toilet rooms.
A4.13.11 Door Opening Force. Although most people with
disabilities can exert at least 5 lbf (22.2N), both pushing and
pulling from a stationary position, a few people with severe
disabilities cannot exert 3 lbf (13.13N). Although some people
cannot manage the allowable forces in this guideline and many
others have difficulty, door closers must have certain minimum
closing forces to close doors satisfactorily. Forces for pushing
or pulling doors open are measured with a push-pull scale under
the following conditions:
(1) Hinged doors: Force applied perpendicular to the door at the
door opener or 30 in (760 mm) from the hinged side, whichever is
farther from the hinge.
(2) Sliding or folding doors: Force applied parallel to the door
at the door pull or latch.
(3) Application of force: Apply force gradually so that the
applied force does not exceed the resistance of the door. In
high-rise buildings, air-pressure differentials may require a
modification of this specification in order to meet the
functional intent.
A4.13.12 Automatic Doors and Power-Assisted Doors. Sliding
automatic doors do not need guard rails and are more convenient
for wheelchair users and visually impaired people to use. If
slowly opening automatic doors can be reactivated before their
closing cycle is completed, they will be more convenient in busy
doorways.
A4.15 Drinking Fountains and Water Coolers.
A4.15.2 Spout Height. Two drinking fountains, mounted side by
side or on a single post, are usable by people with disabilities
and people who find it difficult to bend over.
A4.16 Water Closets.
A4.16.3 Height. Height preferences for toilet seats vary
considerably among disabled people. Higher seat heights may be
an advantage to some ambulatory disabled people, but are often a
disadvantage for wheelchair users and others. Toilet seats 18 in
(455 mm) high seem to be a reasonable compromise. Thick seats
and filler rings are available to adapt standard fixtures to
these requirements.
A4.16.4 Grab Bars. Fig. A6(a) and (b) show the diagonal and side
approaches most commonly used to transfer from a wheelchair to a
water closet. Some wheelchair users can transfer from the front
of the toilet while others use a 90-degree approach. Most people
who use the two additional approaches can also use either the
diagonal approach or the side approach.
A4.16.5 Flush Controls. Flush valves and related plumbing can be
located behind walls or to the side of the toilet, or a toilet
seat lid can be provided if plumbing fittings are directly
behind the toilet seat. Such designs reduce the chance of injury
and imbalance caused by leaning back against the fittings. Flush
controls for tank-type toilets have a standardized mounting
location on the left side of the tank (facing the tank). Tanks
can be obtained by special order with controls mounted on the
right side. If administrative authorities require flush controls
for flush valves to be located in a position that conflicts with
the location of the rear grab bar, then that bar may be split or
shifted toward the wide side of the toilet area.
A4.17 Toilet Stalls.
A4.17.3 Size and Arrangement. This section requires use of the
60 in (1525 mm) standard stall (Figure 30(a)) and permits the 36
in (915 mm) or 48 in (1220 mm) wide alternate stall (Figure
30(b)) only in alterations where provision of the standard stall
is technically infeasible or where local plumbing codes prohibit
reduction in the number of fixtures. A standard stall provides a
clear space on one side of the water closet to enable persons
who use wheelchairs to perform a side or diagonal transfer from
the wheelchair to the water closet. However, some persons with
disabilities who use mobility aids such as walkers, canes or
crutches are better able to use the two parallel grab bars in
the 36 in (915 mm) wide alternate stall to achieve a standing
position.
In large toilet rooms, where six or more toilet stalls are
provided, it is therefore required that a 36 in (915 mm) wide
stall with parallel grab bars be provided in addition to the
standard stall required in new construction. The 36 in (915 mm)
width is necessary to achieve proper use of the grab bars; wider
stalls would position the grab bars too far apart to be easily
used and narrower stalls would position the grab bars too close
to the water closet. Since the stall is primarily intended for
use by persons using canes, crutches and walkers, rather than
wheelchairs, the length of the stall could be conventional. The
door, however, must swing outward to ensure a usable space for
people who use crutches or walkers.
A4.17.5 Doors. To make it easier for wheelchair users to close
toilet stall doors, doors can be provided with closers, spring
hinges, or a pull bar mounted on the inside surface of the door
near the hinge side.
A4.19 Lavatories and Mirrors.
A4.19.6 Mirrors. If mirrors are to be used by both ambulatory
people and wheelchair users, then they must be at least 74 in
(1880 mm) high at their topmost edge. A single full length
mirror can accommodate all people, including children.
A4.21 Shower Stalls.
A4.21.1 General. Shower stalls that are 36 in by 36 in (915 mm
by 915 mm) wide provide additional safety to people who have
difficulty maintaining balance because all grab bars and walls
are within easy reach. Seated people use the walls of 36 in by
36 in (915 mm by 915 mm) showers for back support. Shower stalls
that are 60 in (1525 mm) wide and have no curb may increase
usability of a bathroom by wheelchair users because the shower
area provides additional maneuvering space.
A4.22 Toilet Rooms.
A4.22.3 Clear Floor Space. In many small facilities, single-user
restrooms may be the only facilities provided for all building
users. In addition, the guidelines allow the use of "unisex" or
"family" accessible toilet rooms in alterations when technical
infeasibility can be demonstrated. Experience has shown that the
provision of accessible "unisex" or single-user restrooms is a
reasonable way to provide access for wheelchair users and any
attendants, especially when attendants are of the opposite sex.
Since these facilities have proven so useful, it is often
considered advantageous to install a "unisex" toilet room in new
facilities in addition to making the multi-stall restrooms
accessible, especially in shopping malls, large auditoriums, and
convention centers.
Figure 28 (section 4.16) provides minimum clear floor space
dimensions for toilets in accessible "unisex" toilet rooms. The
dotted lines designate the minimum clear floor space, depending
on the direction of approach, required for wheelchair users to
transfer onto the water closet. The dimensions of 48 in (1220
mm) and 60 in (1525 mm), respectively, correspond to the space
required for the two common transfer approaches utilized by
wheelchair users (see Fig. A6). It is important to keep in mind
that the placement of the lavatory to the immediate side of the
water closet will preclude the side approach transfer
illustrated in Figure A6(b). To accommodate the side transfer,
the space adjacent to the water closet must remain clear of
obstruction for 42 in (1065 mm) from the centerline of the
toilet (Figure 28) and the lavatory must not be located within
this clear space. A turning circle or T-turn, the clear floor
space at the lavatory, and maneuvering space at the door must be
considered when determining the possible wall locations. A
privacy latch or other accessible means of ensuring privacy
during use should be provided at the door.
RECOMMENDATIONS:
1. In new construction, accessible single-user restrooms may be
desirable in some situations because they can accommodate a wide
variety of building users. However, they cannot be used in lieu
of making the multi-stall toilet rooms accessible as required.
2. Where strict compliance to the guidelines for accessible
toilet facilities is technically infeasible in the alteration of
existing facilities, accessible "unisex" toilets are a
reasonable alternative.
3. In designing accessible single-user restrooms, the provisions
of adequate space to allow a side transfer will provide
accommodation to the largest number of wheelchair users.
A4.23 Bathrooms, Bathing Facilities, and Shower Rooms.
A4.23.3 Clear Floor Space. Figure A7 shows two possible
configurations of a toilet room with a roll-in shower. The
specific shower shown is designed to fit exactly within the
dimensions of a standard bathtub. Since the shower does not have
a lip, the floor space can be used for required maneuvering
space. This would permit a toilet room to be smaller than would
be permitted with a bathtub and still provide enough floor space
to be considered accessible. This design can provide
accessibility in facilities where space is at a premium (i.e.,
hotels and medical care facilities). The alternate roll-in
shower (Fig. 57b) also provides sufficient room for the "T-turn"
and does not require plumbing to be on more than one wall.
A4.23.9 Medicine Cabinets. Other alternatives for storing
medical and personal care items are very useful to disabled
people. Shelves, drawers, and floor-mounted cabinets can be
provided within the reach ranges of disabled people.
A4.26 Handrails, Grab Bars, and Tub and Shower Seats.
A4.26.1 General. Many disabled people rely heavily upon grab
bars and handrails to maintain balance and prevent serious
falls. Many people brace their forearms between supports and
walls to give them more leverage and stability in maintaining
balance or for lifting. The grab bar clearance of 1-1/2 in (38
mm) required in this guideline is a safety clearance to prevent
injuries resulting from arms slipping through the openings. It
also provides adequate gripping room.
A4.26.2 Size and Spacing of Grab Bars and Handrails. This
specification allows for alternate shapes of handrails as long
as they allow an opposing grip similar to that provided by a
circular section of 1-1/4 in to 1-1/2 in (32 mm to 38 mm).
A4.27 Controls and Operating Mechanisms.
A4.27.3 Height. Fig. A8 further illustrates mandatory and
advisory control mounting height provisions for typical
equipment.
Electrical receptacles installed to serve individual appliances
and not intended for regular or frequent use by building
occupants are not required to be mounted within the specified
reach ranges. Examples would be receptacles installed
specifically for wall-mounted clocks, refrigerators, and
microwave ovens.
A4.28 Alarms.
A4.28.2 Audible Alarms. Audible emergency signals must have an
intensity and frequency that can attract the attention of
individuals who have partial hearing loss. People over 60 years
of age generally have difficulty perceiving frequencies higher
than 10,000 Hz. An alarm signal which has a periodic element to
its signal, such as single stroke bells (clang-pause-clang-
pause), hi-low (up-down-up-down) and fast whoop (on-off-on-off)
are best. Avoid continuous or reverberating tones. Select a
signal which has a sound characterized by three or four clear
tones without a great deal of "noise" in between.
A4.28.3 Visual Alarms. The specifications in this section do not
preclude the use of zoned or coded alarm systems.
A4.28.4 Auxiliary Alarms. Locating visual emergency alarms in
rooms where persons who are deaf may work or reside alone can
ensure that they will always be warned when an emergency alarm
is activated. To be effective, such devices must be located and
oriented so that they will spread signals and reflections
throughout a space or raise the overall light level sharply.
However, visual alarms alone are not necessarily the best means
to alert sleepers. A study conducted by Underwriters Laboratory
(UL) concluded that a flashing light more than seven times
brighter was required (110 candela v. 15 candela, at the same
distance) to awaken sleepers as was needed to alert awake
subjects in a normal daytime illuminated room.
For hotel and other rooms where people are likely to be asleep,
a signal-activated vibrator placed between mattress and box
spring or under a pillow was found by UL to be much more
effective in alerting sleepers. Many readily available devices
are sound-activated so that they could respond to an alarm
clock, clock radio, wake-up telephone call or room smoke
detector. Activation by a building alarm system can either be
accomplished by a separate circuit activating an auditory alarm
which would, in turn, trigger the vibrator or by a signal
transmitted through the ordinary 110-volt outlet. Transmission
of signals through the power line is relatively simple and is
the basis of common, inexpensive remote light control systems
sold in many department and electronic stores for home use.
So-called "wireless" intercoms operate on the same principal.
A4.29 Detectable Warnings.
A4.29.2 Detectable Warnings on Walking Surfaces. The material
used to provide contrast should contrast by at least 70%.
Contrast in percent is determined by:
Contrast = [(B1 - B2)/B1] x 100
where B1 = light reflectance value (LRV) of the lighter area and
B2 = light reflectance value (LRV) of the darker area.
Note that in any application both white and black are never
absolute; thus, B1 never equals 100 and B2 is always greater
than 0.
A4.30 Signage.
A4.30.1 General. In building complexes where finding locations
independently on a routine basis may be a necessity (for
example, college campuses), tactile maps or prerecorded
instructions can be very helpful to visually impaired people.
Several maps and auditory instructions have been developed and
tested for specific applications. The type of map or
instructions used must be based on the information to be
communicated, which depends highly on the type of buildings or
users.
Landmarks that can easily be distinguished by visually impaired
individuals are useful as orientation cues. Such cues include
changes in illumination level, bright colors, unique patterns,
wall murals, location of special equipment or other
architectural features.
Many people with disabilities have limitations in movement of
their heads and reduced peripheral vision. Thus, signage
positioned perpendicular to the path of travel is easiest for
them to notice. People can generally distinguish signage within
an angle of 30 degrees to either side of the centerlines of
their faces without moving their heads.
A4.30.2 Character Proportion. The legibility of printed
characters is a function of the viewing distance, character
height, the ratio of the stroke width to the height of the
character, the contrast of color between character and
background, and print font. The size of characters must be based
upon the intended viewing distance. A severely nearsighted
person may have to be much closer to recognize a character of a
given size than a person with normal visual acuity.
A4.30.4 Raised and Brailled Characters and Pictorial Symbol
Signs (Pictograms). The standard dimensions for literary Braille
are as follows:
Dot diameter .059 in.
Inter-dot spacing .090 in.
Horizontal separation between cells .241 in.
Vertical separation between cells .395 in.
Raised borders around signs containing raised characters may
make them confusing to read unless the border is set far away
from the characters. Accessible signage with descriptive
materials about public buildings, monuments, and objects of
cultural interest may not provide sufficiently detailed and
meaningful information. Interpretive guides, audio tape devices,
or other methods may be more effective in presenting such
information.
A4.30.5 Finish and Contrast. An eggshell finish (11 to 19 degree
gloss on 60 degree glossimeter) is recommended. Research
indicates that signs are more legible for persons with low
vision when characters contrast with their background by at
least 70 percent. Contrast in percent shall be determined by:
Contrast = [(B1 - B2)/B1] x 100
where B1 = light reflectance value (LRV) of the lighter area and
B2 = light reflectance value (LRV) of the darker area.
Note that in any application both white and black are never
absolute; thus, B1 never equals 100 and B2 is always greater
than 0.
The greatest readability is usually achieved through the use of
light-colored characters or symbols on a dark background.
A4.30.7 Symbols of Accessibility for Different Types of
Listening Systems. Paragraph 4 of this section requires signage
indicating the availability of an assistive listening system. An
appropriate message should be displayed with the international
symbol of access for hearing loss since this symbol conveys
general accessibility for people with hearing loss. Some
suggestions are:
INFRARED
ASSISTIVE LISTENING SYSTEM
AVAILABLE
----PLEASE ASK----
AUDIO LOOP IN USE
TURN T-SWITCH FOR
BETTER HEARING
----OR ASK FOR HELP----
FM
ASSISTIVE LISTENING
SYSTEM AVAILABLE
----PLEASE ASK----
The symbol may be used to notify persons of the availability of
other auxiliary aids and services such as: real time captioning,
captioned note taking, sign language interpreters, and oral
interpreters.
A4.30.8 Illumination Levels. Illumination levels on the sign
surface shall be in the 100 to 300 lux range (10 to 30
footcandles) and shall be uniform over the sign surface. Signs
shall be located such that the illumination level on the surface
of the sign is not significantly exceeded by the ambient light
or visible bright lighting source behind or in front of the
sign.
A4.31 Telephones.
A4.31.3 Mounting Height. In localities where the dial-tone first
system is in operation, calls can be placed at a coin telephone
through the operator without inserting coins. The operator
button is located at a height of 46 in (1170 mm) if the coin
slot of the telephone is at 54 in (1370 mm). A generally
available public telephone with a coin slot mounted lower on the
equipment would allow universal installation of telephones at a
height of 48 in (1220 mm) or less to all operable parts.
A4.31.9 Text Telephones. A public text telephone may be an
integrated text telephone pay phone unit or a conventional
portable text telephone that is permanently affixed within, or
adjacent to, the telephone enclosure. In order to be usable with
a pay phone, a text telephone which is not a single integrated
text telephone pay phone unit will require a shelf large enough
(10 in (255mm) wide by 10 in (255 mm) deep with a 6 in (150 mm)
vertical clearance minimum) to accommodate the device, an
electrical outlet, and a power cord. Movable or portable text
telephones may be used to provide equivalent facilitation. A
text telephone should be readily available so that a person
using it may access the text telephone easily and conveniently.
As currently designed pocket-type text telephones for personal
use do not accommodate a wide range of users. Such devices would
not be considered substantially equivalent to conventional text
telephones. However, in the future as technology develops this
could change.
A4.32 Fixed or Built-in Seating and Tables.
A4.32.4 Height of Tables or Counters. Different types of work
require different table or counter heights for comfort and
optimal performance. Light detailed work such as writing
requires a table or counter close to elbow height for a standing
person. Heavy manual work such as rolling dough requires a
counter or table height about 10 in (255 mm) below elbow height
for a standing person. This principle of high/low table or
counter heights also applies for seated persons; however, the
limiting condition for seated manual work is clearance under the
table or counter.
Table A1 shows convenient counter heights for seated persons.
The great variety of heights for comfort and optimal performance
indicates a need for alternatives or a compromise in height if
people who stand and people who sit will be using the same
counter area.
TABLE A1 CONVENIENT HEIGHTS OF TABLES AND COUNTERS FOR SEATED
PEOPLE1
CONDITIONS OF USE SHORT WOMEN TALL MEN
A4.33 Assembly Areas.
A4.33.2 Size of Wheelchair Locations. Spaces large enough for
two wheelchairs allow people who are coming to a performance
together to sit together.
A4.33.3 Placement of Wheelchair Locations. The location of
wheelchair areas can be planned so that a variety of positions
within the seating area are provided. This will allow choice in
viewing and price categories.
Building/life safety codes set minimum distances between rows of
fixed seats with consideration of the number of seats in a row,
the exit aisle width and arrangement, and the location of exit
doors. "Continental" seating, with a greater number of seats per
row and a commensurate increase in row spacing and exit doors,
facilitates emergency egress for all people and increases ease
of access to mid-row seats especially for people who walk with
difficulty. Consideration of this positive attribute of
"continental" seating should be included along with all other
factors in the design of fixed seating areas.
A4.33.6 Placement of Listening Systems. A distance of 50 ft (15
m) allows a person to distinguish performers' facial
expressions.
A4.33.7 Types of Listening Systems. An assistive listening
system appropriate for an assembly area for a group of persons
or where the specific individuals are not known in advance, such
as a playhouse, lecture hall or movie theater, may be different
from the system appropriate for a particular individual provided
as an auxiliary aid or as part of a reasonable accommodation.
The appropriate device for an individual is the type that
individual can use, whereas the appropriate system for an
assembly area will necessarily be geared toward the "average" or
aggregate needs of various individuals. A listening system that
can be used from any seat in a seating area is the most flexible
way to meet this specification. Earphone jacks with variable
volume controls can benefit only people who have slight hearing
loss and do not help people who use hearing aids. At the present
time, magnetic induction loops are the most feasible type of
listening system for people who use hearing aids equipped with
"T-coils," but people without hearing aids or those with hearing
aids not equipped with inductive pick-ups cannot use them
without special receivers. Radio frequency systems can be
extremely effective and inexpensive. People without hearing aids
can use them, but people with hearing aids need a special
receiver to use them as they are presently designed. If hearing
aids had a jack to allow a by-pass of microphones, then radio
frequency systems would be suitable for people with and without
hearing aids. Some listening systems may be subject to
interference from other equipment and feedback from hearing aids
of people who are using the systems. Such interference can be
controlled by careful engineering design that anticipates
feedback sources in the surrounding area.
Table A2, reprinted from a National Institute of Disability and
Rehabilitation Research "Rehab Brief," shows some of the
advantages and disadvantages of different types of assistive
listening systems. In addition, the Architectural and
Transportation Barriers Compliance Board (Access Board) has
published a pamphlet on Assistive Listening Systems which lists
demonstration centers across the country where technical
assistance can be obtained in selecting and installing
appropriate systems. The state of New York has also adopted a
detailed technical specification which may be useful.
Table A2. Summary of Assistive Listening Devices
System Advantages Disadvantages Typical Applications
Induction Loop
Transmitter: Transducer wired to induction loop
around listening area.
Receiver: Self- contained induction receiver or personal hearing
aid
with telecoil.
Cost-Effective
Low Maintenance
Easy to use
Unobtrusive
May be possible to
integrate into existing
public address system.
Some hearing aids can
function as receivers.
Signal spills over to
adjacent rooms.
Susceptible to electrical
interference.
Limited portability
Inconsistent signal
strength
Head position affects
signal strength.
Lack of standards for
induction coil
performance.
Meeting areas
Theaters
Churches and Temples
Conference rooms
Classrooms
TV viewing
FM Transmitter: Flashlight-sized worn
by speaker.
Receiver: With personal
hearing aid via DAI or
induction neck-loop
and telecoil; or
self- contained with
earphone(s).
Highly portable
Different channels allow
use by different groups
within the same room.
High user mobility
Variable for large range
of hearing losses.
High cost of receivers
Equipment fragile
Equipment obtrusive
High maintenance
Expensive to maintain
Custom fitting to
individual user may be
required.
Classrooms
Tour groups
Meeting areas
Outdoor events
One-on-one
Infrared Transmitter:
Emitter in line-of-sight with receiver.
Receiver: Self-contained.
Or with personal hearing
aid via DAI or induction
neckloop and telecoil. Easy to use
Insures privacy or
confidentiality
Moderate cost
Can often be integrated
into existing public
address system.
Line-of-sight required
between emitter and
receiver.
Ineffective outdoors
Limited portability Requires installation
Theaters
Churches and Temples
Auditoriums
Meetings requiring
confidentiality
TV viewing
Source: Rehab Brief, National Institute on Disability and
Rehabilitation Research, Washington, DC, Vol. XII, No. 10,
(1990).
A5.0 Restaurants and Cafeterias.
A5.1 General. Dining counters (where there is no service) are
typically found in small carry-out restaurants, bakeries, or
coffee shops and may only be a narrow eating surface attached to
a wall. This section requires that where such a dining counter
is provided, a portion of the counter shall be at the required
accessible height.
A7.0 Business and Mercantile.
A7.2(3) Assistive Listening Devices. At all sales and service
counters, teller windows, box offices, and information kiosks
where a physical barrier separates service personnel and
customers, it is recommended that at least one permanently
installed assistive listening device complying with 4.33 be
provided at each location or series. Where assistive listening
devices are installed, signage should be provided identifying
those stations which are so equipped.
A7.3 Check-out Aisles. Section 7.2 refers to counters without
aisles; section 7.3 concerns check-out aisles. A counter without
an aisle (7.2) can be approached from more than one direction
such as in a convenience store. In order to use a check-out
aisle (7.3), customers must enter a defined area (an aisle) at a
particular point, pay for goods, and exit at a particular point.
A10.3 Fixed Facilities and Stations
A10.3.1(7) Route Signs. One means of making control buttons on
fare vending machines usable by persons with vision impairments
is to raise them above the surrounding surface. Those activated
by a mechanical motion are likely to be more detectable. If
farecard vending, collection, and adjustment devices are
designed to accommodate farecards having one tactually
distinctive corner, then a person who has a vision impairment
will insert the card with greater ease. Token collection devices
that are designed to accommodate tokens which are perforated can
allow a person to distinguish more readily between tokens and
common coins. Thoughtful placement of accessible gates and fare
vending machines in relation to inaccessible devices will make
their use and detection easier for all persons with
disabilities.
[56 FR 35592, July 26, 1991, as amended by Order No. 1679-93, 58
FR 17522, Apr. 5, 1993; Order No. 1836-94, 59 FR 2675, Jan. 18,
1994]
Pt. 36, App. B
Appendix B to Part 36 -- Preamble to Regulation on
Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities (Published July 26,
1991)
Note: For the convenience of the reader, this appendix contains
the text of the preamble to the final regulation on
nondiscrimination on the basis of disability by public
accommodations and in commercial facilities beginning at the
heading "Section-by-Section Analysis and Response to Comments''
and ending before "List of Subjects in 28 CFR part 36'' (56 FR
35546, July 26, 1991).
Section-By-Section Analysis and Response to Comments
Subpart A -- General
Section 36.101 Purpose
Section 36.101 states the purpose of the rule, which is to
effectuate title III of the Americans with Disabilities Act of
1990. This title prohibits discrimination on the basis of
disability by public accommodations, requires places of public
accommodation and commercial facilities to be designed,
constructed, and altered in compliance with the accessibility
standards established by this part, and requires that
examinations or courses related to licensing or certification
for professional or trade purposes be accessible to persons with
disabilities.
Section 36.102 Application
Section 36.102 specifies the range of entities and facilities
that have obligations under the final rule. The rule applies to
any public accommodation or commercial facility as those terms
are defined in Sec.36.104. It also applies, in accordance with
section 309 of the ADA, to private entities that offer
examinations or courses related to applications, licensing,
certification, or credentialing for secondary or postsecondary
education, professional, or trade purposes. Except as provided
in Sec.36.206, "Retaliation or coercion,'' this part does not
apply to individuals other than public accommodations or to
public entities. Coverage of private individuals and public
entities is discussed in the preamble to Sec.36.206.
As defined in Sec.36.104, a public accommodation is a private
entity that owns, leases or leases to, or operates a place of
public accommodation. Section 36.102(b)(2) emphasizes that the
general and specific public accommodations requirements of
subparts B and C obligate a public accommodation only with
respect to the operations of a place of public accommodation.
This distinction is drawn in recognition of the fact that a
private entity that meets the regulatory definition of public
accommodation could also own, lease or lease to, or operate
facilities that are not places of public accommodation. The rule
would exceed the reach of the ADA if it were to apply the public
accommodations requirements of subparts B and C to the
operations of a private entity that do not involve a place of
public accommodation. Similarly, Sec.36.102(b)(3) provides that
the new construction and alterations requirements of subpart D
obligate a public accommodation only with respect to facilities
used as, or designed or constructed for use as, places of public
accommodation or commercial facilities.
On the other hand, as mandated by the ADA and reflected in
Sec.36.102(c), the new construction and alterations requirements
of subpart D apply to a commercial facility whether or not the
facility is a place of public accommodation, or is owned,
leased, leased to, or operated by a public accommodation.
Section 36.102(e) states that the rule does not apply to any
private club, religious entity, or public entity. Each of these
terms is defined in Sec.36.104. The exclusion of private clubs
and religious entities is derived from section 307 of the ADA;
and the exclusion of public entities is based on the statutory
definition of public accommodation in section 301(7) of the ADA,
which excludes entities other than private entities from
coverage under title III of the ADA.
Section 36.103 Relationship to Other Laws
Section 36.103 is derived from sections 501 (a) and (b) of the
ADA. Paragraph (a) provides that, except as otherwise
specifically provided by this part, the ADA is not intended to
apply lesser standards than are required under title V of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 790 - 794), or
the regulations implementing that title. The standards of title
V of the Rehabilitation Act apply for purposes of the ADA to the
extent that the ADA has not explicitly adopted a different
standard from title V. Where the ADA explicitly provides a
different standard from section 504, the ADA standard applies to
the ADA, but not to section 504. For example, section 504
requires that all federally assisted programs and activities be
readily accessible to and usable by individuals with handicaps,
even if major structural alterations are necessary to make a
program accessible. Title III of the ADA, in contrast, only
requires alterations to existing facilities if the modifications
are "readily achievable,'' that is, able to be accomplished
easily and without much difficulty or expense. A public
accommodation that is covered under both section 504 and the ADA
is still required to meet the "program accessibility'' standard
in order to comply with section 504, but would not be in
violation of the ADA unless it failed to make "readily
achievable'' modifications. On the other hand, an entity covered
by the ADA is required to make "readily achievable''
modifications, even if the program can be made accessible
without any architectural modifications. Thus, an entity covered
by both section 504 and title III of the ADA must meet both the
"program accessibility'' requirement and the "readily
achievable'' requirement.
Paragraph (b) makes explicit that the rule does not affect the
obligation of recipients of Federal financial assistance to
comply with the requirements imposed under section 504 of the
Rehabilitation Act of 1973.
Paragraph (c) makes clear that Congress did not intend to
displace any of the rights or remedies provided by other Federal
laws or other State or local laws (including State common law)
that provide greater or equal protection to individuals with
disabilities. A plaintiff may choose to pursue claims under a
State law that does not confer greater substantive rights, or
even confers fewer substantive rights, if the alleged violation
is protected under the alternative law and the remedies are
greater. For example, assume that a person with a physical
disability seeks damages under a State law that allows
compensatory and punitive damages for discrimination on the
basis of physical disability, but does not allow them on the
basis of mental disability. In that situation, the State law
would provide narrower coverage, by excluding mental
disabilities, but broader remedies, and an individual covered by
both laws could choose to bring an action under both laws.
Moreover, State tort claims confer greater remedies and are not
preempted by the ADA. A plaintiff may join a State tort claim to
a case brought under the ADA. In such a case, the plaintiff
must, of course, prove all the elements of the State tort claim
in order to prevail under that cause of action.
A commenter had concerns about privacy requirements for banking
transactions using telephone relay services. Title IV of the Act
provides adequate protections for ensuring the confidentiality
of communications using the relay services. This issue is more
appropriately addressed by the Federal Communications Commission
in its regulation implementing title IV of the Act.
Section 36.104 Definitions
"Act.'' The word "Act'' is used in the regulation to refer to
the Americans with Disabilities Act of 1990, Pub. L. 101 - 336,
which is also referred to as the "ADA.''
"Commerce.'' The definition of "commerce'' is identical to the
statutory definition provided in section 301(l) of the ADA. It
means travel, trade, traffic, commerce, transportation, or
communication among the several States, between any foreign
country or any territory or possession and any State, or between
points in the same State but through another State or foreign
country. Commerce is defined in the same manner as in title II
of the Civil Rights Act of 1964, which prohibits racial
discrimination in public accommodations.
The term "commerce'' is used in the definition of "place of
public accommodation.'' According to that definition, one of the
criteria that an entity must meet before it can be considered a
place of public accommodation is that its operations affect
commerce. The term "commerce'' is similarly used in the
definition of "commercial facility.''
The use of the phrase "operations affect commerce'' applies the
full scope of coverage of the Commerce Clause of the
Constitution in enforcing the ADA. The Constitution gives
Congress broad authority to regulate interstate commerce,
including the activities of local business enterprises (e.g., a
physician's office, a neighborhood restaurant, a laundromat, or
a bakery) that affect interstate commerce through the purchase
or sale of products manufactured in other States, or by
providing services to individuals from other States. Because of
the integrated nature of the national economy, the ADA and this
final rule will have extremely broad application.
"Commercial facilities'' are those facilities that are intended
for nonresidential use by a private entity and whose operations
affect commerce. As explained under Sec.36.401, "New
construction,'' the new construction and alteration requirements
of subpart D of the rule apply to all commercial facilities,
whether or not they are places of public accommodation. Those
commercial facilities that are not places of public
accommodation are not subject to the requirements of subparts B
and C (e.g., those requirements concerning auxiliary aids and
general nondiscrimination provisions).
Congress recognized that the employees within commercial
facilities would generally be protected under title I
(employment) of the Act. However, as the House Committee on
Education and Labor pointed out, "[t]o the extent that new
facilities are built in a manner that make[s] them accessible to
all individuals, including potential employees, there will be
less of a need for individual employers to engage in reasonable
accommodations for particular employees.'' H.R. Rep. No. 485,
101st Cong., 2d Sess., pt. 2, at 117 (1990) [hereinafter
"Education and Labor report'']. While employers of fewer than 15
employees are not covered by title I's employment discrimination
provisions, there is no such limitation with respect to new
construction covered under title III. Congress chose not to so
limit the new construction provisions because of its desire for
a uniform requirement of accessibility in new construction,
because accessibility can be accomplished easily in the design
and construction stage, and because future expansion of a
business or sale or lease of the property to a larger employer
or to a business that is a place of public accommodation is
always a possibility.
The term "commercial facilities'' is not intended to be defined
by dictionary or common industry definitions. Included in this
category are factories, warehouses, office buildings, and other
buildings in which employment may occur. The phrase, "whose
operations affect commerce,'' is to be read broadly, to include
all types of activities reached under the commerce clause of the
Constitution.
Privately operated airports are also included in the category of
commercial facilities. They are not, however, places of public
accommodation because they are not terminals used for "specified
public transportation.'' (Transportation by aircraft is
specifically excluded from the statutory definition of
"specified public transportation.'') Thus, privately operated
airports are subject to the new construction and alteration
requirements of this rule (subpart D) but not to subparts B and
C. (Airports operated by public entities are covered by title II
of the Act.) Places of public accommodation located within
airports, such as restaurants, shops, lounges, or conference
centers, however, are covered by subparts B and C of this part.
The statute's definition of "commercial facilities''
specifically includes only facilities "that are intended for
nonresidential use'' and specifically exempts those facilities
that are covered or expressly exempted from coverage under the
Fair Housing Act of 1968, as amended (42 U.S.C. 3601 - 3631).
The interplay between the Fair Housing Act and the ADA with
respect to those facilities that are "places of public
accommodation'' was the subject of many comments and is
addressed in the preamble discussion of the definition of "place
of public accommodation.''
"Current illegal use of drugs.'' The phrase "current illegal use
of drugs'' is used in Sec.36.209. Its meaning is discussed in
the preamble for that section.
"Disability.'' The definition of the term "disability'' is
comparable to the definition of the term "individual with
handicaps'' in section 7(8)(B) of the Rehabilitation Act and
section 802(h) of the Fair Housing Act. The Education and Labor
Committee report makes clear that the analysis of the term
"individual with handicaps'' by the Department of Health,
Education, and Welfare in its regulations implementing section
504 (42 FR 22685 (May 4, 1977)) and the analysis by the
Department of Housing and Urban Development in its regulation
implementing the Fair Housing Amendments Act of 1988 (54 FR 3232
(Jan. 23, 1989)) should also apply fully to the term
"disability'' (Education and Labor report at 50).
The use of the term "disability'' instead of "handicap'' and the
term "individual with a disability'' instead of "individual with
handicaps'' represents an effort by the Congress to make use of
up-to-date, currently accepted terminology. The terminology
applied to individuals with disabilities is a very significant
and sensitive issue. As with racial and ethnic terms, the choice
of words to describe a person with a disability is overlaid with
stereotypes, patronizing attitudes, and other emotional
connotations. Many individuals with disabilities, and
organizations representing such individuals, object to the use
of such terms as "handicapped person'' or "the handicapped.'' In
other recent legislation, Congress also recognized this shift in
terminology, e.g., by changing the name of the National Council
on the Handicapped to the National Council on Disability (Pub.
L. 100 - 630).
In enacting the Americans with Disabilities Act, Congress
concluded that it was important for the current legislation to
use terminology most in line with the sensibilities of most
Americans with disabilities. No change in definition or
substance is intended nor should be attributed to this change in
phraseology.
The term "disability'' means, with respect to an individual --
(A) A physical or mental impairment that substantially limits
one or more of the major life activities of such individual;
(B) A record of such an impairment; or
(C) Being regarded as having such an impairment.
If an individual meets any one of these three tests, he or she
is considered to be an individual with a disability for purposes
of coverage under the Americans with Disabilities Act.
Congress adopted this same basic definition of "disability,''
first used in the Rehabilitation Act of 1973 and in the Fair
Housing Amendments Act of 1988, for a number of reasons. It has
worked well since it was adopted in 1974. There is a substantial
body of administrative interpretation and judicial precedent on
this definition. Finally, it would not be possible to guarantee
comprehensiveness by providing a list of specific disabilities,
especially because new disorders may be recognized in the
future, as they have since the definition was first established
in 1974.
Test A -- A Physical or Mental Impairment That Substantially
Limits One or More of the Major Life Activities of Such
Individual
Physical or mental impairment. Under the first test, an
individual must have a physical or mental impairment. As
explained in paragraph (1) (i) of the definition, "impairment''
means any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: Neurological; musculoskeletal; special
sense organs (including speech organs that are not respiratory,
such as vocal cords, soft palate, and tongue); respiratory,
including speech organs; cardiovascular; reproductive;
digestive; genitourinary; hemic and lymphatic; skin; and
endocrine. It also means any mental or psychological disorder,
such as mental retardation, organic brain syndrome, emotional or
mental illness, and specific learning disabilities. This list
closely tracks the one used in the regulations for section 504
of the Rehabilitation Act of 1973 (see, e.g., 45 CFR
84.3(j)(2)(i)).
Many commenters asked that "traumatic brain injury'' be added to
the list in paragraph (1)(i). Traumatic brain injury is already
included because it is a physiological condition affecting one
of the listed body systems, i.e., "neurological.'' Therefore, it
was unnecessary for the Department to add the term to the
regulation.
It is not possible to include a list of all the specific
conditions, contagious and noncontagious diseases, or infections
that would constitute physical or mental impairments because of
the difficulty of ensuring the comprehensiveness of such a list,
particularly in light of the fact that other conditions or
disorders may be identified in the future. However, the list of
examples in paragraph (1)(iii) of the definition includes:
Orthopedic, visual, speech and hearing impairments; cerebral
palsy; epilepsy, muscular dystrophy, multiple sclerosis, cancer,
heart disease, diabetes, mental retardation, emotional illness,
specific learning disabilities, HIV disease (symptomatic or
asymptomatic), tuberculosis, drug addiction, and alcoholism.
The examples of "physical or mental impairments'' in paragraph
(1)(iii) are the same as those contained in many section 504
regulations, except for the addition of the phrase "contagious
and noncontagious'' to describe the types of diseases and
conditions included, and the addition of "HIV disease
(symptomatic or asymptomatic)'' and "tuberculosis'' to the list
of examples. These additions are based on the ADA committee
reports, caselaw, and official legal opinions interpreting
section 504. In School Board of Nassau County v. Arline, 480
U.S. 273 (1987), a case involving an individual with
tuberculosis, the Supreme Court held that people with contagious
diseases are entitled to the protections afforded by section
504. Following the Arline decision, this Department's Office of
Legal Counsel issued a legal opinion that concluded that
symptomatic HIV disease is an impairment that substantially
limits a major life activity; therefore it has been included in
the definition of disability under this part. The opinion also
concluded that asymptomatic HIV disease is an impairment that
substantially limits a major life activity, either because of
its actual effect on the individual with HIV disease or because
the reactions of other people to individuals with HIV disease
cause such individuals to be treated as though they are
disabled. See Memorandum from Douglas W. Kmiec, Acting Assistant
Attorney General, Office of Legal Counsel, Department of
Justice, to Arthur B. Culvahouse, Jr., Counsel to the President
(Sept. 27, 1988), reprinted in Hearings on S. 933, the Americans
with Disabilities Act, Before the Subcomm. on the Handicapped of
the Senate Comm. on Labor and Human Resources, 101st Cong., 1st
Sess. 346 (1989). The phrase "symptomatic or asymptomatic'' was
inserted in the final rule after "HIV disease'' in response to
commenters who suggested that the clarification was necessary to
give full meaning to the Department's opinion.
Paragraph (1)(iv) of the definition states that the phrase
"physical or mental impairment'' does not include homosexuality
or bisexuality. These conditions were never considered
impairments under other Federal disability laws. Section 511(a)
of the statute makes clear that they are likewise not to be
considered impairments under the Americans with Disabilities
Act.
Physical or mental impairment does not include simple physical
characteristics, such as blue eyes or black hair. Nor does it
include environmental, cultural, economic, or other
disadvantages, such as having a prison record, or being poor.
Nor is age a disability. Similarly, the definition does not
include common personality traits such as poor judgment or a
quick temper where these are not symptoms of a mental or
psychological disorder. However, a person who has these
characteristics and also has a physical or mental impairment may
be considered as having a disability for purposes of the
Americans with Disabilities Act based on the impairment.
Substantial limitation of a major life activity. Under Test A,
the impairment must be one that "substantially limits a major
life activity.'' Major life activities include such things as
caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working. For
example, a person who is paraplegic is substantially limited in
the major life activity of walking, a person who is blind is
substantially limited in the major life activity of seeing, and
a person who is mentally retarded is substantially limited in
the major life activity of learning. A person with traumatic
brain injury is substantially limited in the major life
activities of caring for one's self, learning, and working
because of memory deficit, confusion, contextual difficulties,
and inability to reason appropriately.
A person is considered an individual with a disability for
purposes of Test A, the first prong of the definition, when the
individual's important life activities are restricted as to the
conditions, manner, or duration under which they can be
performed in comparison to most people. A person with a minor,
trivial impairment, such as a simple infected finger, is not
impaired in a major life activity. A person who can walk for 10
miles continuously is not substantially limited in walking
merely because, on the eleventh mile, he or she begins to
experience pain, because most people would not be able to walk
eleven miles without experiencing some discomfort.
The Department received many comments on the proposed rule's
inclusion of the word "temporary'' in the definition of
"disability.'' The preamble indicated that impairments are not
necessarily excluded from the definition of "disability'' simply
because they are temporary, but that the duration, or expected
duration, of an impairment is one factor that may properly be
considered in determining whether the impairment substantially
limits a major life activity. The preamble recognized, however,
that temporary impairments, such as a broken leg, are not
commonly regarded as disabilities, and only in rare
circumstances would the degree of the limitation and its
expected duration be substantial: Nevertheless, many commenters
objected to inclusion of the word "temporary'' both because it
is not in the statute and because it is not contained in the
definition of "disability'' set forth in the title I regulations
of the Equal Employment Opportunity Commission (EEOC). The word
"temporary'' has been deleted from the final rule to conform
with the statutory language. The question of whether a temporary
impairment is a disability must be resolved on a case-by-case
basis, taking into consideration both the duration (or expected
duration) of the impairment and the extent to which it actually
limits a major life activity of the affected individual.
The question of whether a person has a disability should be
assessed without regard to the availability of mitigating
measures, such as reasonable modifications or auxiliary aids and
services. For example, a person with hearing loss is
substantially limited in the major life activity of hearing,
even though the loss may be improved through the use of a
hearing aid. Likewise, persons with impairments, such as
epilepsy or diabetes, that substantially limit a major life
activity, are covered under the first prong of the definition of
disability, even if the effects of the impairment are controlled
by medication.
Many commenters asked that environmental illness (also known as
multiple chemical sensitivity) as well as allergy to cigarette
smoke be recognized as disabilities. The Department, however,
declines to state categorically that these types of allergies or
sensitivities are disabilities, because the determination as to
whether an impairment is a disability depends on whether, given
the particular circumstances at issue, the impairment
substantially limits one or more major life activities (or has a
history of, or is regarded as having such an effect).
Sometimes respiratory or neurological functioning is so severely
affected that an individual will satisfy the requirements to be
considered disabled under the regulation. Such an individual
would be entitled to all of the protections afforded by the Act
and this part. In other cases, individuals may be sensitive to
environmental elements or to smoke but their sensitivity will
not rise to the level needed to constitute a disability. For
example, their major life activity of breathing may be somewhat,
but not substantially, impaired. In such circumstances, the
individuals are not disabled and are not entitled to the
protections of the statute despite their sensitivity to
environmental agents.
In sum, the determination as to whether allergies to cigarette
smoke, or allergies or sensitivities characterized by the
commenters as environmental illness are disabilities covered by
the regulation must be made using the same case-by-case analysis
that is applied to all other physical or mental impairments.
Moreover, the addition of specific regulatory provisions
relating to environmental illness in the final rule would be
inappropriate at this time pending future consideration of the
issue by the Architectural and Transportation Barriers
Compliance Board, the Environmental Protection Agency, and the
Occupational Safety and Health Administration of the Department
of Labor.
Test B -- A Record of Such an Impairment
This test is intended to cover those who have a record of an
impairment. As explained in paragraph (3) of the rule's
definition of disability, this includes a person who has a
history of an impairment that substantially limited a major life
activity, such as someone who has recovered from an impairment.
It also includes persons who have been misclassified as having
an impairment.
This provision is included in the definition in part to protect
individuals who have recovered from a physical or mental
impairment that previously substantially limited them in a major
life activity. Discrimination on the basis of such a past
impairment is prohibited. Frequently occurring examples of the
first group (those who have a history of an impairment) are
persons with histories of mental or emotional illness, heart
disease, or cancer; examples of the second group (those who have
been misclassified as having an impairment) are persons who have
been misclassified as having mental retardation or mental
illness.
Test C -- Being Regarded as Having Such an Impairment
This test, as contained in paragraph (4) of the definition, is
intended to cover persons who are treated by a private entity or
public accommodation as having a physical or mental impairment
that substantially limits a major life activity. It applies when
a person is treated as if he or she has an impairment that
substantially limits a major life activity, regardless of
whether that person has an impairment.
The Americans with Disabilities Act uses the same "regarded as''
test set forth in the regulations implementing section 504 of
the Rehabilitation Act. See, e.g., 28 CFR 42.540(k)(2)(iv),
which provides:
(iv) "Is regarded as having an impairment'' means (A) Has a
physical or mental impairment that does not substantially limit
major life activities but that is treated by a recipient as
constituting such a limitation; (B) Has a physical or mental
impairment that substantially limits major life activities only
as a result of the attitudes of others toward such impairment;
or (C) Has none of the impairments defined in paragraph
(k)(2)(i) of this section but is treated by a recipient as
having such an impairment.
The perception of the private entity or public accommodation is
a key element of this test. A person who perceives himself or
herself to have an impairment, but does not have an impairment,
and is not treated as if he or she has an impairment, is not
protected under this test. A person would be covered under this
test if a restaurant refused to serve that person because of a
fear of "negative reactions'' of others to that person. A person
would also be covered if a public accommodation refused to serve
a patron because it perceived that the patron had an impairment
that limited his or her enjoyment of the goods or services being
offered.
For example, persons with severe burns often encounter
discrimination in community activities, resulting in substantial
limitation of major life activities. These persons would be
covered under this test based on the attitudes of others towards
the impairment, even if they did not view themselves as
"impaired.''
The rationale for this third test, as used in the Rehabilitation
Act of 1973, was articulated by the Supreme Court in Arline, 480
U.S. 273 (1987). The Court noted that, although an individual
may have an impairment that does not in fact substantially limit
a major life activity, the reaction of others may prove just as
disabling. "Such an impairment might not diminish a person's
physical or mental capabilities, but could nevertheless
substantially limit that person's ability to work as a result of
the negative reactions of others to the impairment.'' Id. at
283. The Court concluded that, by including this test in the
Rehabilitation Act's definition, "Congress acknowledged that
society's accumulated myths and fears about disability and
disease are as handicapping as are the physical limitations that
flow from actual impairment.'' Id. at 284.
Thus, a person who is not allowed into a public accommodation
because of the myths, fears, and stereotypes associated with
disabilities would be covered under this third test whether or
not the person's physical or mental condition would be
considered a disability under the first or second test in the
definition.
If a person is refused admittance on the basis of an actual or
perceived physical or mental condition, and the public
accommodation can articulate no legitimate reason for the
refusal (such as failure to meet eligibility criteria), a
perceived concern about admitting persons with disabilities
could be inferred and the individual would qualify for coverage
under the "regarded as'' test. A person who is covered because
of being regarded as having an impairment is not required to
show that the public accommodation's perception is inaccurate
(e.g., that he will be accepted by others, or that insurance
rates will not increase) in order to be admitted to the public
accommodation.
Paragraph (5) of the definition lists certain conditions that
are not included within the definition of "disability.'' The
excluded conditions are: transvestism, transsexualism,
pedophilia, exhibitionism, voyeurism, gender identity disorders
not resulting from physical impairments, other sexual behavior
disorders, compulsive gambling, kleptomania, pyromania, and
psychoactive substance use disorders resulting from current
illegal use of drugs. Unlike homosexuality and bisexuality,
which are not considered impairments under either the Americans
with Disabilities Act (see the definition of "disability,''
paragraph (1)(iv)) or section 504, the conditions listed in
paragraph (5), except for transvestism, are not necessarily
excluded as impairments under section 504. (Transvestism was
excluded from the definition of disability for section 504 by
the Fair Housing Amendments Act of 1988, Pub. L. 100 - 430,
Sec.6(b).) The phrase "current illegal use of drugs'' used in
this definition is explained in the preamble to Sec.36.209.
"Drug.'' The definition of the term "drug'' is taken from
section 510(d)(2) of the ADA.
"Facility.'' "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.
Committee reports made clear that the definition of facility was
drawn from the definition of facility in current Federal
regulations (see, e.g., Education and Labor report at 114). It
includes both indoor and outdoor areas where human-constructed
improvements, structures, equipment, or property have been added
to the natural environment.
The term "rolling stock or other conveyances'' was not included
in the definition of facility in the proposed rule. However,
commenters raised questions about the applicability of this part
to places of public accommodation operated in mobile facilities
(such as cruise ships, floating restaurants, or mobile health
units). Those places of public accommodation are covered under
this part, and would be included in the definition of
"facility.'' Thus the requirements of subparts B and C would
apply to those places of public accommodation. For example, a
covered entity could not discriminate on the basis of disability
in the full and equal enjoyment of the facilities (Sec.36.201).
Similarly, a cruise line could not apply eligibility criteria to
potential passengers in a manner that would screen out
individuals with disabilities, unless the criteria are
"necessary,'' as provided in Sec.36.301.
However, standards for new construction and alterations of such
facilities are not yet included in the Americans with
Disabilities Act Accessibility Guidelines for Buildings and
Facilities (ADAAG) adopted by Sec.36.406 and incorporated in
appendix A. The Department therefore will not interpret the new
construction and alterations provisions of subpart D to apply to
the types of facilities discussed here, pending further
development of specific requirements.
Requirements pertaining to accessible transportation services
provided by public accommodations are included in Sec.36.310 of
this part; standards pertaining to accessible vehicles will be
issued by the Secretary of Transportation pursuant to section
306 of the Act, and will be codified at 49 CFR part 37.
A public accommodation has obligations under this rule with
respect to a cruise ship to the extent that its operations are
subject to the laws of the United States.
The definition of "facility'' only includes the site over which
the private entity may exercise control or on which a place of
public accommodation or a commercial facility is located. It
does not include, for example, adjacent roads or walks
controlled by a public entity that is not subject to this part.
Public entities are subject to the requirements of title II of
the Act. The Department's regulation implementing title II,
which will be codified at 28 CFR part 35, addresses the
obligations of public entities to ensure accessibility by
providing curb ramps at pedestrian walkways.
"Illegal use of drugs.'' The definition of "illegal use of
drugs'' is taken from section 510(d)(1) of the Act and clarifies
that the term includes the illegal use of one or more drugs.
"Individual with a disability'' means a person who has a
disability but does not include an individual who is currently
illegally using drugs, when the public accommodation acts on the
basis of such use. The phrase "current illegal use of drugs'' is
explained in the preamble to Sec.36.209.
"Place of public accommodation.'' The term "place of public
accommodation'' is an adaptation of the statutory definition of
"public accommodation'' in section 301(7) of the ADA and appears
as an element of the regulatory definition of public
accommodation. The final rule defines "place of public
accommodation'' as a facility, operated by a private entity,
whose operations affect commerce and fall within at least one of
12 specified categories. The term "public accommodation,'' on
the other hand, is reserved by the final rule for the private
entity that owns, leases (or leases to), or operates a place of
public accommodation. It is the public accommodation, and not
the place of public accommodation, that is subject to the
regulation's nondiscrimination requirements. Placing the
obligation not to discriminate on the public accommodation, as
defined in the rule, is consistent with section 302(a) of the
ADA, which places the obligation not to discriminate on any
person who owns, leases (or leases to), or operates a place of
public accommodation.
Facilities operated by government agencies or other public
entities as defined in this section do not qualify as places of
public accommodation. The actions of public entities are
governed by title II of the ADA and will be subject to
regulations issued by the Department of Justice under that
title. The receipt of government assistance by a private entity
does not by itself preclude a facility from being considered as
a place of public accommodation.
The definition of place of public accommodation incorporates the
12 categories of facilities represented in the statutory
definition of public accommodation in section 301(7) of the ADA:
1. Places of lodging.
2. Establishments serving food or drink.
3. Places of exhibition or entertainment.
4. Places of public gathering.
5. Sales or rental establishments.
6. Service establishments.
7. Stations used for specified public transportation.
8. Places of public display or collection.
9. Places of recreation.
10. Places of education.
11. Social service center establishments.
12. Places of exercise or recreation.
In order to be a place of public accommodation, a facility must
be operated by a private entity, its operations must affect
commerce, and it must fall within one of these 12 categories.
While the list of categories is exhaustive, the representative
examples of facilities within each category are not. Within each
category only a few examples are given. The category of social
service center establishments would include not only the types
of establishments listed, day care centers, senior citizen
centers, homeless shelters, food banks, adoption agencies, but
also establishments such as substance abuse treatment centers,
rape crisis centers, and halfway houses. As another example, the
category of sales or rental establishments would include an
innumerable array of facilities that would sweep far beyond the
few examples given in the regulation. For example, other retail
or wholesale establishments selling or renting items, such as
bookstores, videotape rental stores, car rental establishment,
pet stores, and jewelry stores would also be covered under this
category, even though they are not specifically listed.
Several commenters requested clarification as to the coverage of
wholesale establishments under the category of "sales or rental
establishments.'' The Department intends for wholesale
establishments to be covered under this category as places of
public accommodation except in cases where they sell exclusively
to other businesses and not to individuals. For example, a
company that grows food produce and supplies its crops
exclusively to food processing corporations on a wholesale basis
does not become a public accommodation because of these
transactions. If this company operates a road side stand where
its crops are sold to the public, the road side stand would be a
sales establishment covered by the ADA. Conversely, a sales
establishment that markets its goods as "wholesale to the
public'' and sells to individuals would not be exempt from ADA
coverage despite its use of the word "wholesale'' as a marketing
technique.
Of course, a company that operates a place of public
accommodation is subject to this part only in the operation of
that place of public accommodation. In the example given above,
the wholesale produce company that operates a road side stand
would be a public accommodation only for the purposes of the
operation of that stand. The company would be prohibited from
discriminating on the basis of disability in the operation of
the road side stand, and it would be required to remove barriers
to physical access to the extent that it is readily achievable
to do so (see Sec.36.304); however, in the event that it is not
readily achievable to remove barriers, for example, by replacing
a gravel surface or regrading the area around the stand to
permit access by persons with mobility impairments, the company
could meet its obligations through alternative methods of making
its goods available, such as delivering produce to a customer in
his or her car (see Sec.36.305). The concepts of readily
achievable barrier removal and alternatives to barrier removal
are discussed further in the preamble discussion of Sec..36.304
and 36.305.
Even if a facility does not fall within one of the 12
categories, and therefore does not qualify as a place of public
accommodation, it still may be a commercial facility as defined
in Sec.36.104 and be subject to the new construction and
alterations requirements of subpart D.
A number of commenters questioned the treatment of residential
hotels and other residential facilities in the Department's
proposed rule. These commenters were essentially seeking
resolution of the relationship between the Fair Housing Act and
the ADA concerning facilities that are both residential in
nature and engage in activities that would cause them to be
classified as "places of public accommodation'' under the ADA.
The ADA's express exemption relating to the Fair Housing Act
applies only to "commercial facilities'' and not to "places of
public accommodation.''
A facility whose operations affect interstate commerce is a
place of public accommodation for purposes of the ADA to the
extent that its operations include those types of activities
engaged in or services provided by the facilities contained on
the list of 12 categories in section 301(7) of the ADA. Thus, a
facility that provides social services would be considered a
"social service center establishment.'' Similarly, the category
"places of lodging'' would exclude solely residential facilities
because the nature of a place of lodging contemplates the use of
the facility for short-term stays.
Many facilities, however, are mixed use facilities. For example,
in a large hotel that has a separate residential apartment wing,
the residential wing would not be covered by the ADA because of
the nature of the occupancy of that part of the facility. This
residential wing would, however, be covered by the Fair Housing
Act. The separate nonresidential accommodations in the rest of
the hotel would be a place of lodging, and thus a public
accommodation subject to the requirements of this final rule. If
a hotel allows both residential and short-term stays, but does
not allocate space for these different uses in separate,
discrete units, both the ADA and the Fair Housing Act may apply
to the facility. Such determinations will need to be made on a
case-by-case basis. Any place of lodging of the type described
in paragraph (1) of the definition of place of public
accommodation and that is an establishment located within a
building that contains not more than five rooms for rent or hire
and is actually occupied by the proprietor of the establishment
as his or her residence is not covered by the ADA. (This
exclusion from coverage does not apply to other categories of
public accommodations, for example, professional offices or
homeless shelters, that are located in a building that is also
occupied as a private residence.)
A number of commenters noted that the term "residential hotel''
may also apply to a type of hotel commonly known as a "single
room occupancy hotel.'' Although such hotels or portions of such
hotels may fall under the Fair Housing Act when operated or used
as long-term residences, they are also considered "places of
lodging'' under the ADA when guests of such hotels are free to
use them on a short-term basis. In addition, "single room
occupancy hotels'' may provide social services to their guests,
often through the operation of Federal or State grant programs.
In such a situation, the facility would be considered a "social
service center establishment'' and thus covered by the ADA as a
place of public accommodation, regardless of the length of stay
of the occupants.
A similar analysis would also be applied to other residential
facilities that provide social services, including homeless
shelters, shelters for people seeking refuge from domestic
violence, nursing homes, residential care facilities, and other
facilities where persons may reside for varying lengths of time.
Such facilities should be analyzed under the Fair Housing Act to
determine the application of that statute. The ADA, however,
requires a separate and independent analysis. For example, if
the facility, or a portion of the facility, is intended for or
permits short-term stays, or if it can appropriately be
categorized as a service establishment or as a social service
establishment, then the facility or that portion of the facility
used for the covered purpose is a place of public accommodation
under the ADA. For example, a homeless shelter that is intended
and used only for long-term residential stays and that does not
provide social services to its residents would not be covered as
a place of public accommodation. However, if this facility
permitted short-term stays or provided social services to its
residents, it would be covered under the ADA either as a "place
of lodging'' or as a "social service center establishment,'' or
as both.
A private home, by itself, does not fall within any of the 12
categories. However, it can be covered as a place of public
accommodation to the extent that it is used as a facility that
would fall within one of the 12 categories. For example, if a
professional office of a dentist, doctor, or psychologist is
located in a private home, the portion of the home dedicated to
office use (including areas used both for the residence and the
office, e.g., the entrance to the home that is also used as the
entrance to the professional office) would be considered a place
of public accommodation. Places of public accommodation located
in residential facilities are specifically addressed in
Sec.36.207.
If a tour of a commercial facility that is not otherwise a place
of public accommodation, such as, for example, a factory or a
movie studio production set, is open to the general public, the
route followed by the tour is a place of public accommodation
and the tour must be operated in accordance with the rule's
requirements for public accommodations. The place of public
accommodation defined by the tour does not include those
portions of the commercial facility that are merely viewed from
the tour route. Hence, the barrier removal requirements of
Sec.36.304 only apply to the physical route followed by the tour
participants and not to work stations or other areas that are
merely adjacent to, or within view of, the tour route. If the
tour is not open to the general public, but rather is conducted,
for example, for selected business colleagues, partners,
customers, or consultants, the tour route is not a place of
public accommodation and the tour is not subject to the
requirements for public accommodations.
Public accommodations that receive Federal financial assistance
are subject to the requirements of section 504 of the
Rehabilitation Act as well as the requirements of the ADA.
Private schools, including elementary and secondary schools, are
covered by the rule as places of public accommodation. The rule
itself, however, does not require a private school to provide a
free appropriate education or develop an individualized
education program in accordance with regulations of the
Department of Education implementing section 504 of the
Rehabilitation Act of 1973, as amended (34 CFR part 104), and
regulations implementing the Individuals with Disabilities
Education Act (34 CFR part 300). The receipt of Federal
assistance by a private school, however, would trigger
application of the Department of Education's regulations to the
extent mandated by the particular type of assistance received.
"Private club.'' The term "private club'' is defined in
accordance with section 307 of the ADA as a private club or
establishment exempted from coverage under title II of the Civil
Rights Act of 1964. Title II of the 1964 Act exempts any
"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 the customers or patrons of
[a place of public accommodation as defined in title II].'' The
rule, therefore, as reflected in Sec.36.102(e) of the
application section, limits the coverage of private clubs
accordingly. The obligations of a private club that rents space
to any other private entity for the operation of a place of
public accommodation are discussed further in connection with
Sec.36.201.
In determining whether a private entity qualifies as a private
club under title II, courts have considered such factors as the
degree of member control of club operations, the selectivity of
the membership selection process, whether substantial membership
fees are charged, whether the entity is operated on a nonprofit
basis, the extent to which the facilities are open to the
public, the degree of public funding, and whether the club was
created specifically to avoid compliance with the Civil Rights
Act. See e.g., Tillman v. Wheaton-Haven Recreation Ass'n, 410
U.S. 431 (1973); Daniel v. Paul, 395 U.S. 298 (1969); Olzman v.
Lake Hills Swim Club, Inc., 495 F.2d 1333 (2d Cir. 1974);
Anderson v. Pass Christian Isles Golf Club, Inc., 488 F.2d 855
(5th Cir. 1974); Smith v. YMCA, 462 F.2d 634 (5th Cir. 1972);
Stout v. YMCA, 404 F.2d 687 (5th Cir. 1968); United States v.
Richberg, 398 F.2d 523 (5th Cir. 1968); Nesmith v. YMCA, 397
F.2d 96 (4th Cir. 1968); United States v. Lansdowne Swim Club,
713 F. Supp. 785 (E.D. Pa. 1989); Durham v. Red Lake Fishing and
Hunting Club, Inc., 666 F. Supp. 954 (W.D. Tex. 1987); New York
v. Ocean Club, Inc., 602 F. Supp. 489 (E.D.N.Y. 1984); Brown v.
Loudoun Golf and Country Club, Inc., 573 F. Supp. 399 (E.D. Va.
1983); United States v. Trustees of Fraternal Order of Eagles,
472 F. Supp. 1174 (E.D. Wis. 1979); Cornelius v. Benevolent
Protective Order of Elks, 382 F. Supp. 1182 (D. Conn. 1974).
"Private entity.'' The term "private entity'' is defined as any
individual or entity other than a public entity. It is used as
part of the definition of "public accommodation'' in this
section.
The definition adds "individual'' to the statutory definition of
private entity (see section 301(6) of the ADA). This addition
clarifies that an individual may be a private entity and,
therefore, may be considered a public accommodation if he or she
owns, leases (or leases to), or operates a place of public
accommodation. The explicit inclusion of individuals under the
definition of private entity is consistent with section 302(a)
of the ADA, which broadly prohibits discrimination on the basis
of disability by any person who owns, leases (or leases to), or
operates a place of public accommodation.
"Public accommodation.'' The term "public accommodation'' means
a private entity that owns, leases (or leases to), or operates a
place of public accommodation. The regulatory term, "public
accommodation,'' corresponds to the statutory term, "person,''
in section 302(a) of the ADA. The ADA prohibits discrimination
"by any person who owns, leases (or leases to), or operates a
place of public accommodation.'' The text of the regulation
consequently places the ADA's nondiscrimination obligations on
"public accommodations'' rather than on "persons'' or on "places
of public accommodation.''
As stated in Sec.36.102(b)(2), the requirements of subparts B
and C obligate a public accommodation only with respect to the
operations of a place of public accommodation. A public
accommodation must also meet the requirements of subpart D with
respect to facilities used as, or designed or constructed for
use as, places of public accommodation or commercial facilities.
"Public entity.'' The term "public entity'' is defined in
accordance with section 201(1) of the ADA as any State or local
government; any department, agency, special purpose district, or
other instrumentality of a State or States or local government;
and the National Railroad Passenger Corporation, and any
commuter authority (as defined in section 103(8) of the Rail
Passenger Service Act). It is used in the definition of "private
entity'' in Sec.36.104. Public entities are excluded from the
definition of private entity and therefore cannot qualify as
public accommodations under this regulation. However, the
actions of public entities are covered by title II of the ADA
and by the Department's title II regulations codified at 28 CFR
part 35.
"Qualified interpreter.'' The Department received substantial
comment regarding the lack of a definition of "qualified
interpreter.'' The proposed rule defined auxiliary aids and
services to include the statutory term, "qualified
interpreters'' (Sec.36.303(b)), but did not define that term.
Section 36.303 requires the use of a qualified interpreter where
necessary to achieve effective communication, unless an undue
burden or fundamental alteration would result. Commenters stated
that a lack of guidance on what the term means would create
confusion among those trying to secure interpreting services and
often result in less than effective communication.
Many commenters were concerned that, without clear guidance on
the issue of "qualified'' interpreter, the rule would be
interpreted to mean "available, rather than qualified''
interpreters. Some claimed that few public accommodations would
understand the difference between a qualified interpreter and a
person who simply knows a few signs or how to fingerspell.
In order to clarify what is meant by "qualified interpreter''
the Department has added a definition of the term to the final
rule. A qualified interpreter means an interpreter who is able
to interpret effectively, accurately, and impartially both
receptively and expressively, using any necessary specialized
vocabulary. This definition focuses on the actual ability of the
interpreter in a particular interpreting context to facilitate
effective communication between the public accommodation and the
individual with disabilities.
Public comment also revealed that public accommodations have at
times asked persons who are deaf to provide family members or
friends to interpret. In certain circumstances, notwithstanding
that the family member or friend is able to interpret or is a
certified interpreter, the family member or friend may not be
qualified to render the necessary interpretation because of
factors such as emotional or personal involvement or
considerations of confidentiality that may adversely affect the
ability to interpret "effectively, accurately, and
impartially.''
"Readily achievable.'' The definition of "readily achievable''
follows the statutory definition of that term in section 301(9)
of the ADA. Readily achievable means easily accomplishable and
able to be carried out without much difficulty or expense. The
term is used as a limitation on the obligation to remove
barriers under Sec..36.304(a), 36.305(a), 36.308(a), and
36.310(b). Further discussion of the meaning and application of
the term "readily achievable'' may be found in the preamble
section for Sec.36.304.
The definition lists factors to be considered in determining
whether barrier removal is readily achievable in any particular
circumstance. A significant number of commenters objected to
Sec.36.306 of the proposed rule, which listed identical factors
to be considered for determining "readily achievable'' and
"undue burden'' together in one section. They asserted that
providing a consolidated section blurred the distinction between
the level of effort required by a public accommodation under the
two standards. The readily achievable standard is a "lower''
standard than the "undue burden'' standard in terms of the level
of effort required, but the factors used in determining whether
an action is readily achievable or would result in an undue
burden are identical (See Education and Labor report at 109).
Although the preamble to the proposed rule clearly delineated
the relationship between the two standards, to eliminate any
confusion the Department has deleted Sec.36.306 of the proposed
rule. That section, in any event, as other commenters noted, had
merely repeated the lists of factors contained in the
definitions of readily achievable and undue burden.
The list of factors included in the definition is derived from
section 301(9) of the ADA. It reflects the congressional
intention that a wide range of factors be considered in
determining whether an action is readily achievable. It also
takes into account that many local facilities are owned or
operated by parent corporations or entities that conduct
operations at many different sites. This section makes clear
that, in some instances, resources beyond those of the local
facility where the barrier must be removed may be relevant in
determining whether an action is readily achievable. One must
also evaluate the degree to which any parent entity has
resources that may be allocated to the local facility.
The statutory list of factors in section 301(9) of the Act uses
the term "covered entity'' to refer to the larger entity of
which a particular facility may be a part. "Covered entity'' is
not a defined term in the ADA and is not used consistently
throughout the Act. The definition, therefore, substitutes the
term "parent entity'' in place of "covered entity'' in
paragraphs (3), (4), and (5) when referring to the larger
private entity whose overall resources may be taken into
account. This usage is consistent with the House Judiciary
Committee's use of the term "parent company'' to describe the
larger entity of which the local facility is a part (H.R. Rep.
No. 485, 101st Cong., 2d Sess., pt. 3, at 40 - 41, 54 - 55
(1990) (hereinafter "Judiciary report'')).
A number of commenters asked for more specific guidance as to
when and how the resources of a parent corporation or entity are
to be taken into account in determining what is readily
achievable. The Department believes that this complex issue is
most appropriately resolved on a case-by-case basis. As the
comments reflect, there is a wide variety of possible
relationships between the site in question and any parent
corporation or other entity. It would be unwise to posit legal
ramifications under the ADA of even generic relationships (e.g.,
banks involved in foreclosures or insurance companies operating
as trustees or in other similar fiduciary relationships),
because any analysis will depend so completely on the detailed
fact situations and the exact nature of the legal relationships
involved. The final rule does, however, reorder the factors to
be considered. This shift and the addition of the phrase "if
applicable'' make clear that the line of inquiry concerning
factors will start at the site involved in the action itself.
This change emphasizes that the overall resources, size, and
operations of the parent corporation or entity should be
considered to the extent appropriate in light of "the geographic
separateness, and the administrative or fiscal relationship of
the site or sites in question to any parent corporation or
entity.''
Although some commenters sought more specific numerical guidance
on the definition of readily achievable, the Department has
declined to establish in the final rule any kind of numerical
formula for determining whether an action is readily achievable.
It would be difficult to devise a specific ceiling on compliance
costs that would take into account the vast diversity of
enterprises covered by the ADA's public accommodations
requirements and the economic situation that any particular
entity would find itself in at any moment. The final rule,
therefore, implements the flexible case-by-case approach chosen
by Congress.
A number of commenters requested that security considerations be
explicitly recognized as a factor in determining whether a
barrier removal action is readily achievable. The Department
believes that legitimate safety requirements, including crime
prevention measures, may be taken into account so long as they
are based on actual risks and are necessary for safe operation
of the public accommodation. This point has been included in the
definition.
Some commenters urged the Department not to consider acts of
barrier removal in complete isolation from each other in
determining whether they are readily achievable. The Department
believes that it is appropriate to consider the cost of other
barrier removal actions as one factor in determining whether a
measure is readily achievable.
"Religious entity.'' The term "religious entity'' is defined in
accordance with section 307 of the ADA as a religious
organization or entity controlled by a religious organization,
including a place of worship. Section 36.102(e) of the rule
states that the rule does not apply to any religious entity.
The ADA's exemption of religious organizations and religious
entities controlled by religious organizations is very broad,
encompassing a wide variety of situations. Religious
organizations and entities controlled by religious organizations
have no obligations under the ADA. Even when a religious
organization carries out activities that would othervise make it
a public accommodation, the religious organization is exempt
from ADA coverage. Thus, if a church itself operates a day care
center, a nursing home, a private school, or a diocesan school
system, the operations of the center, home, school, or schools
would not be subject to the requirements of the ADA or this
part. The religious entity would not lose its exemption merely
because the services provided were open to the general public.
The test is whether the church or other religious organization
operates the public accommodation, not which individuals receive
the public accommodation's services.
Religious entities that are controlled by religious
organizations are also exempt from the ADA's requirements. Many
religious organizations in the United States use lay boards and
other secular or corporate mechanisms to operate schools and an
array of social services. The use of a lay board or other
mechanism does not itself remove the ADA's religious exemption.
Thus, a parochial school, having religious doctrine in its
curriculum and sponsored by a religious order, could be exempt
either as a religious organization or as an entity controlled by
a religious organization, even if it has a lay board. The test
remains a factual one -- whether the church or other religious
organization controls the operations of the school or of the
service or whether the school or service is itself a religious
organization.
Although a religious organization or a religious entity that is
controlled by a religious organization has no obligations under
the rule, a public accommodation that is not itself a religious
organization, but that operates a place of public accommodation
in leased space on the property of a religious entity, which is
not a place of worship, is subject to the rule's requirements if
it is not under control of a religious organization. When a
church rents meeting space, which is not a place of worship, to
a local community group or to a private, independent day care
center, the ADA applies to the activities of the local community
group and day care center if a lease exists and consideration is
paid.
"Service animal.'' The term "service animal'' encompasses any
guide dog, signal dog, or other animal individually trained to
provide assistance to an individual with a disability. The term
is used in Sec.36.302(c), which requires public accommodations
generally to modify policies, practices, and procedures to
accommodate the use of service animals in places of public
accommodation.
"Specified public transportation.'' The definition of "specified
public transportation'' is identical to the statutory definition
in section 301(10) of the ADA. The term means transportation by
bus, rail, or any other conveyance (other than by aircraft) that
provides the general public with general or special service
(including charter service) on a regular and continuing basis.
It is used in category (7) of the definition of "place of public
accommodation,'' which includes stations used for specified
public transportation.
The effect of this definition, which excludes transportation by
aircraft, is that it excludes privately operated airports from
coverage as places of public accommodation. However, places of
public accommodation located within airports would be covered by
this part. Airports that are operated by public entities are
covered by title II of the ADA and, if they are operated as part
of a program receiving Federal financial assistance, by section
504 of the Rehabilitation Act. Privately operated airports are
similarly covered by section 504 if they are operated as part of
a program receiving Federal financial assistance. The operations
of any portion of any airport that are under the control of an
air carrier are covered by the Air Carrier Access Act. In
addition, airports are covered as commercial facilities under
this rule.
"State.'' The definition of "State'' is identical to the
statutory definition in section 3(3) of the ADA. The term is
used in the definitions of "commerce'' and "public entity'' in
Sec.36.104.
"Undue burden.'' The definition of "undue burden'' is analogous
to the statutory definition of "undue hardship'' in employment
under section 101(10) of the ADA. The term undue burden means
"significant difficulty or expense'' and serves as a limitation
on the obligation to provide auxiliary aids and services under
Sec.36.303 and Sec..36.309 (b)(3) and (c)(3). Further discussion
of the meaning and application of the term undue burden may be
found in the preamble discussion of Sec.36.303.
The definition lists factors considered in determining whether
provision of an auxiliary aid or service in any particular
circumstance would result in an undue burden. The factors to be
considered in determining whether an action would result in an
undue burden are identical to those to be considered in
determining whether an action is readily achievable. However,
"readily achievable'' is a lower standard than "undue burden''
in that it requires a lower level of effort on the part of the
public accommodation (see Education and Labor report at 109).
Further analysis of the factors to be considered in determining
undue burden may be found in the preamble discussion of the
definition of the term "readily achievable.''
Subpart B -- General Requirements
Subpart B includes general prohibitions restricting a public
accommodation from discriminating against people with
disabilities by denying them the opportunity to benefit from
goods or services, by giving them unequal goods or services, or
by giving them different or separate goods or services. These
general prohibitions are patterned after the basic, general
prohibitions that exist in other civil rights laws that prohibit
discrimination on the basis of race, sex, color, religion, or
national origin.
Section 36.201 General
Section 36.201(a) contains the general rule that prohibits
discrimination on the basis of disability in the full and equal
enjoyment of goods, services, facilities, privileges,
advantages, and accommodations of any place of public
accommodation.
Full and equal enjoyment means the right to participate and to
have an equal opportunity to obtain the same results as others
to the extent possible with such accommodations as may be
required by the Act and these regulations. It does not mean that
an individual with a disability must achieve an identical result
or level of achievement as persons without a disability. For
example, an exercise class cannot exclude a person who uses a
wheelchair because he or she cannot do all of the exercises and
derive the same result from the class as persons without a
disability.
Section 302(a) of the ADA states that the prohibition against
discrimination applies to "any person who owns, leases (or
leases to), or operates a place of public accommodation,'' and
this language is reflected in Sec.36.201(a). The coverage is
quite extensive and would include sublessees, management
companies, and any other entity that owns, leases, leases to, or
operates a place of public accommodation, even if the operation
is only for a short time.
The first sentence of paragraph (b) of Sec.36.201 reiterates the
general principle that both the landlord that owns the building
that houses the place of public accommodation, as well as the
tenant that owns or operates the place of public accommodation,
are public accommodations subject to the requirements of this
part. Although the statutory language could be interpreted as
placing equal responsibility on all private entities, whether
lessor, lessee, or operator of a public accommodation, the
committee reports suggest that liability may be allocated.
Section 36.201(b) of that section of the proposed rule attempted
to allocate liability in the regulation itself. Paragraph (b)(2)
of that section made a specific allocation of liability for the
obligation to take readily achievable measures to remove
barriers, and paragraph (b)(3) made a specific allocation for
the obligation to provide auxiliary aids.
Numerous commenters pointed out that these allocations would not
apply in all situations. Some asserted that paragraph (b)(2) of
the proposed rule only addressed the situation when a lease gave
the tenant the right to make alterations with permission of the
landlord, but failed to address other types of leases, e.g.,
those that are silent on the right to make alterations, or those
in which the landlord is not permitted to enter a tenant's
premises to make alterations. Several commenters noted that many
leases contain other clauses more relevant to the ADA than the
alterations clause. For example, many leases contain a
"compliance clause,'' a clause which allocates responsibility to
a particular party for compliance with all relevant Federal,
State, and local laws. Many commenters pointed out various types
of relationships that were left unaddressed by the regulation,
e.g., sale and leaseback arrangements where the landlord is a
financial institution with no control or responsibility for the
building; franchises; subleases; and management companies which,
at least in the hotel industry, often have control over
operations but are unable to make modifications to the premises.
Some commenters raised specific questions as to how the barrier
removal allocation would work as a practical matter. Paragraph
(b)(2) of the proposed rule provided that the burden of making
readily achievable modifications within the tenant's place of
public accommodation would shift to the landlord when the
modifications were not readily achievable for the tenant or when
the landlord denied a tenant's request for permission to make
such modifications. Commenters noted that the rule did not
specify exactly when the burden would actually shift from tenant
to landlord and whether the landlord would have to accept a
tenant's word that a particular action is not readily
achievable. Others questioned if the tenant should be obligated
to use alternative methods of barrier removal before the burden
shifts. In light of the fact that readily achievable removal of
barriers can include such actions as moving of racks and
displays, some commenters doubted the appropriateness of
requiring a landlord to become involved in day-to-day operations
of its tenants' businesses.
The Department received widely differing comments in response to
the preamble question asking whether landlord and tenant
obligations should vary depending on the length of time
remaining on an existing lease. Many suggested that tenants
should have no responsibilities in "shorter leases,'' which
commenters defined as ranging anywhere from 90 days to three
years. Other commenters pointed out that the time remaining on
the lease should not be a factor in the rule's allocation of
responsibilities, but is relevant in determining what is readily
achievable for the tenant. The Department agrees with this
latter approach and will interpret the rule in that manner.
In recognition of the somewhat limited applicability of the
allocation scheme contained in the proposed rule, paragraphs
(b)(2) and (b)(3) have been deleted from the final rule. The
Department has substituted instead a statement that allocation
of responsibility as between the parties for taking readily
achievable measures to remove barriers and to provide auxiliary
aids and services both in common areas and within places of
public accommodation may be determined by the lease or other
contractual relationships between the parties. The ADA was not
intended to change existing landlord/tenant responsibilities as
set forth in the lease. By deleting specific provisions from the
rule, the Department gives full recognition to this principle.
As between the landlord and tenant, the extent of responsibility
for particular obligations may be, and in many cases probably
will be, determined by contract.
The suggested allocation of responsibilities contained in the
proposed rule may be used if appropriate in a particular
situation. Thus, the landlord would generally be held
responsible for making readily achievable changes and providing
auxiliary aids and services in common areas and for modifying
policies, practices, or procedures applicable to all tenants,
and the tenant would generally be responsible for readily
achievable changes, provision of auxiliary aids, and
modification of policies within its own place of public
accommodation.
Many commenters objected to the proposed rule's allocation of
responsibility for providing auxiliary aids and services solely
to the tenant, pointing out that this exclusive allocation may
not be appropriate in the case of larger public accommodations
that operate their businesses by renting space out to smaller
public accommodations. For example, large theaters often rent to
smaller traveling companies and hospitals often rely on
independent contractors to provide childbirth classes. Groups
representing persons with disabilities objected to the proposed
rule because, in their view, it permitted the large theater or
hospital to evade ADA responsibilities by leasing to independent
smaller entities. They suggested that these types of public
accommodations are not really landlords because they are in the
business of providing a service, rather than renting space, as
in the case of a shopping center or office building landlord.
These commenters believed that responsibility for providing
auxiliary aids should shift to the landlord, if the landlord
relies on a smaller public accommodation or independent
contractor to provide services closely related to those of the
larger public accommodation, and if the needed auxiliary aids
prove to be an undue burden for the smaller public
accommodation. The final rule no longer lists specific
allocations to specific parties but, rather, leaves allocation
of responsibilities to the lease negotiations. Parties are,
therefore, free to allocate the responsibility for auxiliary
aids.
Section 36.201(b)(4) of the proposed rule, which provided that
alterations by a tenant on its own premises do not trigger a
path of travel obligation on the landlord, has been moved to
Sec.36.403(d) of the final rule.
An entity that is not in and of itself a public accommodation,
such as a trade association or performing artist, may become a
public accommodation when it leases space for a conference or
performance at a hotel, convention center, or stadium. For an
entity to become a public accommodation when it is the lessee of
space, however, the Department believes that consideration in
some form must be given. Thus, a Boy Scout troop that accepts
donated space does not become a public accommodation because the
troop has not "leased'' space, as required by the ADA.
As a public accommodation, the trade association or performing
artist will be responsible for compliance with this part.
Specific responsibilities should be allocated by contract, but,
generally, the lessee should be responsible for providing
auxiliary aids and services (which could include interpreters,
Braille programs, etc.) for the participants in its conference
or performance as well as for assuring that displays are
accessible to individuals with disabilities.
Some commenters suggested that the rule should allocate
responsibilities for areas other than removal of barriers and
auxiliary aids. The final rule leaves allocation of all areas to
the lease negotiations. However, in general landlords should not
be given responsibility for policies a tenant applies in
operating its business, if such policies are solely those of the
tenant. Thus, if a restaurant tenant discriminates by refusing
to seat a patron, it would be the tenant, and not the landlord,
who would be responsible, because the discriminatory policy is
imposed solely by the tenant and not by the landlord. If,
however, a tenant refuses to modify a "no pets'' rule to allow
service animals in its restaurant because the landlord mandates
such a rule, then both the landlord and the tenant would be
liable for violation of the ADA when a person with a service dog
is refused entrance. The Department wishes to emphasize,
however, that the parties are free to allocate responsibilities
in any way they choose.
Private clubs are also exempt from the ADA. However, consistent
with title II of the Civil Rights Act (42 U.S.C. 2000a(e), a
private club is considered a public accommodation to the extent
that "the facilities of such establishment are made available to
the customers or patrons'' of a place of public accommodation.
Thus, if a private club runs a day care center that is open
exclusively to its own members, the club, like the church in the
example above, would have no responsibility for compliance with
the ADA. Nor would the day care center have any responsibilities
because it is part of the private club exempt from the ADA.
On the other hand, if the private club rents to a day care
center that is open to the public, then the private club would
have the same obligations as any other public accommodation that
functions as a landlord with respect to compliance with title
III within the day care center. In such a situation, both the
private club that "leases to'' a public accommodation and the
public accommodation lessee (the day care center) would be
subject to the ADA. This same principle would apply if the
private club were to rent to, for example, a bar association,
which is not generally a public accommodation but which, as
explained above, becomes a public accommodation when it leases
space for a conference.
Section 36.202 Activities
Section 36.202 sets out the general forms of discrimination
prohibited by title III of the ADA. These general prohibitions
are further refined by the specific prohibitions in subpart C.
Section 36.213 makes clear that the limitations on the ADA's
requirements contained in subpart C, such as "necessity''
(Sec.36.301(a)) and "safety'' (Sec.36.301(b)), are applicable to
the prohibitions in Sec.36.202. Thus, it is unnecessary to add
these limitations to Sec.36.202 as has been requested by some
commenters. In addition, the language of Sec.36.202 very closely
tracks the language of section 302(b)(1)(A) of the Act, and that
statutory provision does not expressly contain these
limitations.
Deny participation -- Section 36.202(a) provides that it is
discriminatory to deny a person with a disability the right to
participate in or benefit from the goods, services, facilities,
privileges, advantages, or accommodations of a place of public
accommodation.
A public accommodation may not exclude persons with disabilities
on the basis of disability for reasons other than those
specifically set forth in this part. For example, a public
accommodation cannot refuse to serve a person with a disability
because its insurance company conditions coverage or rates on
the absence of persons with disabilities. This is a frequent
basis of exclusion from a variety of community activities and is
prohibited by this part.
Unequal benefit -- Section 36.202(b) prohibits services or
accommodations that are not equal to those provided others. For
example, persons with disabilities must not be limited to
certain performances at a theater.
Separate benefit -- Section 36.202(c) permits different or
separate benefits or services only when necessary to provide
persons with disabilities opportunities as effective as those
provided others. This paragraph permitting separate benefits
"when necessary'' should be read together with Sec.36.203(a),
which requires integration in "the most integrated setting
appropriate to the needs of the individual.'' The preamble to
that section provides further guidance on separate programs.
Thus, this section would not prohibit the designation of parking
spaces for persons with disabilities.
Each of the three paragraphs (a) - (c) prohibits discrimination
against an individual or class of individuals "either directly
or through contractual, licensing, or other arrangements.'' The
intent of the contractual prohibitions of these paragraphs is to
prohibit a public accommodation from doing indirectly, through a
contractual relationship, what it may not do directly. Thus, the
"individual or class of individuals'' referenced in the three
paragraphs is intended to refer to the clients and customers of
the public accommodation that entered into a contractual
arrangement. It is not intended to encompass the clients or
customers of other entities. A public accommodation, therefore,
is not liable under this provision for discrimination that may
be practiced by those with whom it has a contractual
relationship, when that discrimination is not directed against
its own clients or customers. For example, if an amusement park
contracts with a food service company to operate its restaurants
at the park, the amusement park is not responsible for other
operations of the food service company that do not involve
clients or customers of the amusement park. Section 36.202(d)
makes this clear by providing that the term "individual or class
of individuals'' refers to the clients or customers of the
public accommodation that enters into the contractual,
licensing, or other arrangement.
Section 36.203 Integrated Settings
Section 36.203 addresses the integration of persons with
disabilities. The ADA recognizes that the provision of goods and
services in an integrated manner is a fundamental tenet of
nondiscrimination on the basis of disability. Providing
segregated accommodations and services relegates persons with
disabilities to the status of second-class citizens. For
example, it would be a violation of this provision to require
persons with mental disabilities to eat in the back room of a
restaurant or to refuse to allow a person with a disability the
full use of a health spa because of stereotypes about the
person's ability to participate. Section 36.203(a) states that a
public accommodation shall afford goods, services, facilities,
privileges, advantages, and accommodations to an individual with
a disability in the most integrated setting appropriate to the
needs of the individual. Section 36.203(b) specifies that,
notwithstanding the existence of separate or different programs
or activities provided in accordance with this section, an
individual with a disability shall not be denied the opportunity
to participate in such programs or activities that are not
separate or different. Section 306.203(c), which is derived from
section 501(d) of the Americans with Disabilities Act, states
that nothing in this part shall be construed to require an
individual with a disability to accept an accommodation, aid,
service, opportunity, or benefit that he or she chooses not to
accept.
Taken together, these provisions are intended to prohibit
exclusion and segregation of individuals with disabilities and
the denial of equal opportunities enjoyed by others, based on,
among other things, presumptions, patronizing attitudes, fears,
and stereotypes about individuals with disabilities. Consistent
with these standards, public accommodations are required to make
decisions based on facts applicable to individuals and not on
the basis of presumptions as to what a class of individuals with
disabilities can or cannot do.
Sections 36.203 (b) and (c) make clear that individuals with
disabilities cannot be denied the opportunity to participate in
programs that are not separate or different. This is an
important and overarching principle of the Americans with
Disabilities Act. Separate, special, or different programs that
are designed to provide a benefit to persons with disabilities
cannot be used to restrict the participation of persons with
disabilities in general, integrated activities.
For example, a person who is blind may wish to decline
participating in a special museum tour that allows persons to
touch sculptures in an exhibit and instead tour the exhibit at
his or her own pace with the museum's recorded tour. It is not
the intent of this section to require the person who is blind to
avail himself or herself of the special tour. Modified
participation for persons with disabilities must be a choice,
not a requirement.
Further, it would not be a violation of this section for an
establishment to offer recreational programs specially designed
for children with mobility impairments in those limited
circumstances. However, it would be a violation of this section
if the entity then excluded these children from other
recreational services made available to nondisabled children, or
required children with disabilities to attend only designated
programs.
Many commenters asked that the Department clarify a public
accommodation's obligations within the integrated program when
it offers a separate program, but an individual with a
disability chooses not to participate in the separate program.
It is impossible to make a blanket statement as to what level of
auxiliary aids or modifications are required in the integrated
program. Rather, each situation must be assessed individually.
Assuming the integrated program would be appropriate for a
particular individual, the extent to which that individual must
be provided with modifications will depend not only on what the
individual needs but also on the limitations set forth in
subpart C. For example, it may constitute an undue burden for a
particular public accommodation, which provides a full-time
interpreter in its special guided tour for individuals with
hearing impairments, to hire an additional interpreter for those
individuals who choose to attend the integrated program. The
Department cannot identify categorically the level of assistance
or aid required in the integrated program.
The preamble to the proposed rule contained a statement that
some interpreted as encouraging the continuation of separate
schools, sheltered workshops, special recreational programs, and
other similar programs. It is important to emphasize that
Sec.36.202(c) only calls for separate programs when such
programs are "necessary'' to provide as effective an opportunity
to individuals with disabilities as to other individuals.
Likewise, Sec.36.203(a) only permits separate programs when a
more integrated setting would not be "appropriate.'' Separate
programs are permitted, then, in only limited circumstances. The
sentence at issue has been deleted from the preamble because it
was too broadly stated and had been erroneously interpreted as
Departmental encouragement of separate programs without
qualification.
The proposed rule's reference in Sec.36.203(b) to separate
programs or activities provided in accordance with "this
section'' has been changed to "this subpart'' in recognition of
the fact that separate programs or activities may, in some
limited circumstances, be permitted not only by Sec.36.203(a)
but also by Sec.36.202(c).
In addition, some commenters suggested that the individual with
the disability is the only one who can decide whether a setting
is "appropriate'' and what the "needs'' are. Others suggested
that only the public accommodation can make these
determinations. The regulation does not give exclusive
responsibility to either party. Rather, the determinations are
to be made based on an objective view, presumably one which
would take into account views of both parties.
Some commenters expressed concern that Sec.36.203(c), which
states that nothing in the rule requires an individual with a
disability to accept special accommodations and services
provided under the ADA, could be interpreted to allow guardians
of infants or older people with disabilities to refuse medical
treatment for their wards. Section 36.203(c) has been revised to
make it clear that paragraph (c) is inapplicable to the concern
of the commenters. A new paragraph (c)(2) has been added stating
that nothing in the regulation authorizes the representative or
guardian of an individual with a disability to decline food,
water, medical treatment, or medical services for that
individual. New paragraph (c) clarifies that neither the ADA nor
the regulation alters current Federal law ensuring the rights of
incompetent individuals with disabilities to receive food,
water, and medical treatment. See, e.g., Child Abuse Amendments
of 1984 (42 U.S.C. 5106a(b)(10), 5106g(10)); Rehabilitation Act
of 1973, as amended (29 U.S.C 794); Developmentally Disabled
Assistance and Bill of Rights Act (42 U.S.C. 6042).
Sections 36.203(c) (1) and (2) are based on section 501(d) of
the ADA. Section Sec.501(d) was designed to clarify that nothing
in the ADA requires individuals with disabilities to accept
special accommodations and services for individuals with
disabilities that may segregate them:
The Committee added this section (501(d)) to clarify that
nothing in the ADA is intended to permit discriminatory
treatment on the basis of disability, even when such treatment
is rendered under the guise of providing an accommodation,
service, aid or benefit to the individual with disability. For
example, a blind individual may choose not to avail himself or
herself of the right to go to the front of a line, even if a
particular public accommodation has chosen to offer such a
modification of a policy for blind individuals. Or, a blind
individual may choose to decline to participate in a special
museum tour that allows persons to touch sculptures in an
exhibit and instead tour the exhibits at his or her own pace
with the museum's recorded tour.
(Judiciary report at 71 - 72.) The Act is not to be construed to
mean that an individual with disabilities must accept special
accommodations and services for individuals with disabilities
when that individual chooses to participate in the regular
services already offered. Because medical treatment, including
treatment for particular conditions, is not a special
accommodation or service for individuals with disabilities under
section 501(d), neither the Act nor this part provides
affirmative authority to suspend such treatment. Section 501(d)
is intended to clarify that the Act is not designed to foster
discrimination through mandatory acceptance of special services
when other alternatives are provided; this concern does not
reach to the provision of medical treatment for the disabling
condition itself.
Section 36.213 makes clear that the limitations contained in
subpart C are to be read into subpart B. Thus, the integration
requirement is subject to the various defenses contained in
subpart C, such as safety, if eligibility criteria are at issue
(Sec.36.301(b)), or fundamental alteration and undue burden, if
the concern is provision of auxiliary aids (Sec.36.303(a)).
Section 36.204 Administrative Methods
Section 36.204 specifies that an individual or entity shall not,
directly, or through contractual or other arrangements, utilize
standards or criteria or methods of administration that have the
effect of discriminating on the basis of disability or that
perpetuate the discrimination of others who are subject to
common administrative control. The preamble discussion of
Sec.36.301 addresses eligibility criteria in detail.
Section 36.204 is derived from section 302(b)(1)(D) of the
Americans with Disabilities Act, and it uses the same language
used in the employment section of the ADA (section 102(b)(3)).
Both sections incorporate a disparate impact standard to ensure
the effectiveness of the legislative mandate to end
discrimination. This standard is consistent with the
interpretation of section 504 by the U.S. Supreme Court in
Alexander v. Choate, 469 U.S. 287 (1985). The Court in Choate
explained that members of Congress made numerous statements
during passage of section 504 regarding eliminating
architectural barriers, providing access to transportation, and
eliminating discriminatory effects of job qualification
procedures. The Court then noted: "These statements would ring
hollow if the resulting legislation could not rectify the harms
resulting from action that discriminated by effect as well as by
design.'' Id at 297 (footnote omitted).
Of course, Sec.36.204 is subject to the various limitations
contained in subpart C including, for example, necessity
(Sec.36.301(a)), safety (Sec.36.301(b)), fundamental alteration
(Sec.36.302(a)), readily achievable (Sec.36.304(a)), and undue
burden (Sec.36.303(a)).
Section 36.205 Association
Section 36.205 implements section 302(b)(1)(E) of the Act, which
provides that a public accommodation shall not exclude or
otherwise deny equal goods, services, facilities, privileges,
advantages, accommodations, or other opportunities to an
individual or entity because of the known disability of an
individual with whom the individual or entity is known to have a
relationship or association. This section is unchanged from the
proposed rule.
The individuals covered under this section include any
individuals who are discriminated against because of their known
association with an individual with a disability. For example,
it would be a violation of this part for a day care center to
refuse admission to a child because his or her brother has HIV
disease.
This protection is not limited to those who have a familial
relationship with the individual who has a disability. If a
place of public accommodation refuses admission to a person with
cerebral palsy and his or her companions, the companions have an
independent right of action under the ADA and this section.
During the legislative process, the term "entity'' was added to
section 302(b)(1)(E) to clarify that the scope of the provision
is intended to encompass not only persons who have a known
association with a person with a disability, but also entities
that provide services to or are otherwise associated with such
individuals. This provision was intended to ensure that entities
such as health care providers, employees of social service
agencies, and others who provide professional services to
persons with disabilities are not subjected to discrimination
because of their professional association with persons with
disabilities. For example, it would be a violation of this
section to terminate the lease of a entity operating an
independent living center for persons with disabilities, or to
seek to evict a health care provider because that individual or
entity provides services to persons with mental impairments.
Section 36.206 Retaliation or Coercion
Section 36.206 implements section 503 of the ADA, which
prohibits retaliation against any individual who exercises his
or her rights under the Act. This section is unchanged from the
proposed rule. Paragraph (a) of Sec.36.206 provides that no
private entity or public entity shall discriminate against any
individual because that individual has exercised his or her
right to oppose any act or practice made unlawful by this part,
or because that individual made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding,
or hearing under the Act or this part.
Paragraph (b) provides that no private entity or public entity
shall coerce, intimidate, threaten, or interfere with any
individual in the exercise of his or her rights under this part
or because that individual aided or encouraged any other
individual in the exercise or enjoyment of any right granted or
protected by the Act or this part.
Illustrations of practices prohibited by this section are
contained in paragraph (c), which is modeled on a similar
provision in the regulations issued by the Department of Housing
and Urban Development to implement the Fair Housing Act (see 24
CFR 100.400(c)(l)). Prohibited actions may include:
(1) Coercing an individual to deny or limit the benefits,
services, or advantages to which he or she is entitled under the
Act or this part;
(2) Threatening, intimidating, or interfering with an individual
who is seeking to obtain or use the goods, services, facilities,
privileges, advantages, or accommodations of a public
accommodation;
(3) Intimidating or threatening any person because that person
is assisting or encouraging an individual or group entitled to
claim the rights granted or protected by the Act or this part to
exercise those rights; or
(4) Retaliating against any person because that person has
participated in any investigation or action to enforce the Act
or this part.
This section protects not only individuals who allege a
violation of the Act or this part, but also any individuals who
support or assist them. This section applies to all
investigations or proceedings initiated under the Act or this
part without regard to the ultimate resolution of the underlying
allegations. Because this section prohibits any act of
retaliation or coercion in response to an individual's effort to
exercise rights established by the Act and this part (or to
support the efforts of another individual), the section applies
not only to public accommodations that are otherwise subject to
this part, but also to individuals other than public
accommodations or to public entities. For example, it would be a
violation of the Act and this part for a private individual,
e.g., a restaurant customer, to harass or intimidate an
individual with a disability in an effort to prevent that
individual from patronizing the restaurant. It would, likewise,
be a violation of the Act and this part for a public entity to
take adverse action against an employee who appeared as a
witness on behalf of an individual who sought to enforce the
Act.
Section 36.207 Places of Public Accommodation Located in Private
Residences
A private home used exclusively as a residence is not covered by
title III because it is neither a "commercial facility'' nor a
"place of public accommodation.'' In some situations, however, a
private home is not used exclusively as a residence, but houses
a place of public accommodation in all or part of a home (e.g.,
an accountant who meets with his or her clients at his or her
residence). Section 36.207(a) provides that those portions of
the private residence used in the operation of the place of
public accommodation are covered by this part.
For instance, a home or a portion of a home may be used as a day
care center during the day and a residence at night. If all
parts of the house are used for the day care center, then the
entire residence is a place of public accommodation because no
part of the house is used exclusively as a residence. If an
accountant uses one room in the house solely as his or her
professional office, then a portion of the house is used
exclusively as a place of public accommodation and a portion is
used exclusively as a residence. Section 36.207 provides that
when a portion of a residence is used exclusively as a
residence, that portion is not covered by this part. Thus, the
portions of the accountant's house, other than the professional
office and areas and spaces leading to it, are not covered by
this part. All of the requirements of this rule apply to the
covered portions, including requirements to make reasonable
modifications in policies, eliminate discriminatory eligibility
criteria, take readily achievable measures to remove barriers or
provide readily achievable alternatives (e.g., making house
calls), provide auxiliary aids and services and undertake only
accessible new construction and alterations.
Paragraph (b) was added in response to comments that sought
clarification on the extent of coverage of the private residence
used as the place of public accommodation. The final rule makes
clear that the place of accommodation extends to all areas of
the home used by clients and customers of the place of public
accommodation. Thus, the ADA would apply to any door or entry
way, hallways, a restroom, if used by customers and clients; and
any other portion of the residence, interior or exterior, used
by customers or clients of the public accommodation. This
interpretation is simply an application of the general rule for
all public accommodations, which extends statutory requirements
to all portions of the facility used by customers and clients,
including, if applicable, restrooms, hallways, and approaches to
the public accommodation. As with other public accommodations,
barriers at the entrance and on the sidewalk leading up to the
public accommodation, if the sidewalk is under the control of
the public accommodation, must be removed if doing so is readily
achievable.
The Department recognizes that many businesses that operate out
of personal residences are quite small, often employing only the
homeowner and having limited total revenues. In these
circumstances the effect of ADA coverage would likely be quite
minimal. For example, because the obligation to remove existing
architectural barriers is limited to those that are easily
accomplishable without much difficulty or expense (see
Sec.36.304), the range of required actions would be quite
modest. It might not be readily achievable for such a place of
public accommodation to remove any existing barriers. If it is
not readily achievable to remove existing architectural
barriers, a public accommodation located in a private residence
may meet its obligations under the Act and this part by
providing its goods or services to clients or customers with
disabilities through the use of alternative measures, including
delivery of goods or services in the home of the customer or
client, to the extent that such alternative measures are readily
achievable (See Sec.36.305).
Some commenters asked for clarification as to how the new
construction and alteration standards of subpart D will apply to
residences. The new construction standards only apply to the
extent that the residence or portion of the residence was
designed or intended for use as a public accommodation. Thus,
for example, if a portion of a home is designed or constructed
for use exclusively as a lawyer's office or for use both as a
lawyer's office and for residential purposes, then it must be
designed in accordance with the new construction standards in
the appendix. Likewise, if a homeowner is undertaking
alterations to convert all or part of his residence to a place
of public accommodation, that work must be done in compliance
with the alterations standards in the appendix.
The preamble to the proposed rule addressed the applicable
requirements when a commercial facility is located in a private
residence. That situation is now addressed in Sec.36.401(b) of
subpart D.
Section 36.208 Direct Threat
Section 36.208(a) implements section 302(b)(3) of the Act by
providing that this part does not require a public accommodation
to permit an individual to participate in or benefit from the
goods, services, facilities, privileges, advantages and
accommodations of the public accommodation, if that individual
poses a direct threat to the health or safety of others. This
section is unchanged from the proposed rule.
The Department received a significant number of comments on this
section. Commenters representing individuals with disabilities
generally supported this provision, but suggested revisions to
further limit its application. Commenters representing public
accommodations generally endorsed modifications that would
permit a public accommodation to exercise its own judgment in
determining whether an individual poses a direct threat.
The inclusion of this provision is not intended to imply that
persons with disabilities pose risks to others. It is intended
to address concerns that may arise in this area. It establishes
a strict standard that must be met before denying service to an
individual with a disability or excluding that individual from
participation.
Paragraph (b) of this section explains that a "direct threat''
is a significant risk to the health or safety of others that
cannot be eliminated by a modification of policies, practices,
or procedures, or by the provision of auxiliary aids and
services. This paragraph codifies the standard first applied by
the Supreme Court in School Board of Nassau County v. Arline,
480 U.S. 273 (1987), in which the Court held that an individual
with a contagious disease may be an "individual with handicaps''
under section 504 of the Rehabilitation Act. In Arline, the
Supreme Court recognized that there is a need to balance the
interests of people with disabilities against legitimate
concerns for public safety. Although persons with disabilities
are generally entitled to the protection of this part, a person
who poses a significant risk to others may be excluded if
reasonable modifications to the public accommodation's policies,
practices, or procedures will not eliminate that risk. The
determination that a person poses a direct threat to the health
or safety of others may not be based on generalizations or
stereotypes about the effects of a particular disability; it
must be based on an individual assessment that conforms to the
requirements of paragraph (c) of this section.
Paragraph (c) establishes the test to use in determining whether
an individual poses a direct threat to the health or safety of
others. A public accommodation is required to make an
individualized assessment, based on reasonable judgment that
relies on current medical evidence or on the best available
objective evidence, to determine: The nature, duration, and
severity of the risk; the probability that the potential injury
will actually occur; and whether reasonable modifications of
policies, practices, or procedures will mitigate the risk. This
is the test established by the Supreme Court in Arline. Such an
inquiry is essential if the law is to achieve its goal of
protecting disabled individuals from discrimination based on
prejudice, stereotypes, or unfounded fear, while giving
appropriate weight to legitimate concerns, such as the need to
avoid exposing others to significant health and safety risks.
Making this assessment will not usually require the services of
a physician. Sources for medical knowledge include guidance from
public health authorities, such as the U.S. Public Health
Service, the Centers for Disease Control, and the National
Institutes of Health, including the National Institute of Mental
Health.
Many of the commenters sought clarification of the inquiry
requirement. Some suggested that public accommodations should be
prohibited from making any inquiries to determine if an
individual with a disability would pose a direct threat to other
persons. The Department believes that to preclude all such
inquiries would be inappropriate. Under Sec.36.301 of this part,
a public accommodation is permitted to establish eligibility
criteria necessary for the safe operation of the place of public
accommodation. Implicit in that right is the right to ask if an
individual meets the criteria. However, any eligibility or
safety standard established by a public accommodation must be
based on actual risk, not on speculation or stereotypes; it must
be applied to all clients or customers of the place of public
accommodation; and inquiries must be limited to matters
necessary to the application of the standard.
Some commenters suggested that the test established in the
Arline decision, which was developed in the context of an
employment case, is too stringent to apply in a public
accommodations context where interaction between the public
accommodation and its client or customer is often very brief.
One suggested alternative was to permit public accommodations to
exercise "good faith'' judgment in determining whether an
individual poses a direct threat, particularly when a public
accommodation is dealing with a client or customer engaged in
disorderly or disruptive behavior.
The Department believes that the ADA clearly requires that any
determination to exclude an individual from participation must
be based on an objective standard. A public accommodation may
establish neutral eligibility criteria as a condition of
receiving its goods or services. As long as these criteria are
necessary for the safe provision of the public accommodation's
goods and services and applied neutrally to all clients or
customers, regardless of whether they are individuals with
disabilities, a person who is unable to meet the criteria may be
excluded from participation without inquiry into the underlying
reason for the inability to comply. In places of public
accommodation such as restaurants, theaters, or hotels, where
the contact between the public accommodation and its clients is
transitory, the uniform application of an eligibility standard
precluding violent or disruptive behavior by any client or
customer should be sufficient to enable a public accommodation
to conduct its business in an orderly manner.
Some other commenters asked for clarification of the application
of this provision to persons, particularly children, who have
short-term, contagious illnesses, such as fevers, influenza, or
the common cold. It is common practice in schools and day care
settings to exclude persons with such illnesses until the
symptoms subside. The Department believes that these commenters
misunderstand the scope of this rule. The ADA only prohibits
discrimination against an individual with a disability. Under
the ADA and this part, a "disability'' is defined as a physical
or mental impairment that substantially limits one or more major
life activities. Common, short-term illnesses that predictably
resolve themselves within a matter of days do not "substantially
limit'' a major life activity; therefore, it is not a violation
of this part to exclude an individual from receiving the
services of a public accommodation because of such transitory
illness. However, this part does apply to persons who have
long-term illnesses. Any determination with respect to a person
who has a chronic or long-term illness must be made in
compliance with the requirements of this section.
Section 36.209 Illegal Use of Drugs
Section 36.209 effectuates section 510 of the ADA, which
clarifies the Act's application to people who use drugs
illegally. Paragraph (a) provides that this part does not
prohibit discrimination based on an individual's current illegal
use of drugs.
The Act and the regulation distinguish between illegal use of
drugs and the legal use of substances, whether or not those
substances are "controlled substances,'' as defined in the
Controlled Substances Act (21 U.S.C. 812). Some controlled
substances are prescription drugs that have legitimate medical
uses. Section 36.209 does not affect use of controlled
substances pursuant to a valid prescription, under supervision
by a licensed health care professional, or other use that is
authorized by the Controlled Substances Act or any other
provision of Federal law. It does apply to illegal use of those
substances, as well as to illegal use of controlled substances
that are not prescription drugs. The key question is whether the
individual's use of the substance is illegal, not whether the
substance has recognized legal uses. Alcohol is not a controlled
substance, so use of alcohol is not addressed by Sec.36.209.
Alcoholics are individuals with disabilities, subject to the
protections of the statute.
A distinction is also made between the use of a substance and
the status of being addicted to that substance. Addiction is a
disability, and addicts are individuals with disabilities
protected by the Act. The protection, however, does not extend
to actions based on the illegal use of the substance. In other
words, an addict cannot use the fact of his or her addiction as
a defense to an action based on illegal use of drugs. This
distinction is not artificial. Congress intended to deny
protection to people who engage in the illegal use of drugs,
whether or not they are addicted, but to provide protection to
addicts so long as they are not currently using drugs.
A third distinction is the difficult one between current use and
former use. The definition of "current illegal use of drugs'' in
Sec.36.104, which is based on the report of the Conference
Committee, H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. 64
(1990), is "illegal use of drugs that occurred recently enough
to justify a reasonable belief that a person's drug use is
current or that continuing use is a real and ongoing problem.''
Paragraph (a)(2)(i) specifies that an individual who has
successfully completed a supervised drug rehabilitation program
or has otherwise been rehabilitated successfully and who is not
engaging in current illegal use of drugs is protected. Paragraph
(a)(2)(ii) clarifies that an individual who is currently
participating in a supervised rehabilitation program and is not
engaging in current illegal use of drugs is protected. Paragraph
(a)(2)(iii) provides that a person who is erroneously regarded
as engaging in current illegal use of drugs, but who is not
engaging in such use, is protected.
Paragraph (b) provides a limited exception to the exclusion of
current illegal users of drugs from the protections of the Act.
It prohibits denial of health services, or services provided in
connection with drug rehabilitation, to an individual on the
basis of current illegal use of drugs, if the individual is
otherwise entitled to such services. As explained further in the
discussion of Sec.36.302, a health care facility that
specializes in a particular type of treatment, such as care of
burn victims, is not required to provide drug rehabilitation
services, but it cannot refuse to treat an individual's burns on
the grounds that the individual is illegally using drugs.
A commenter argued that health care providers should be
permitted to use their medical judgment to postpone
discretionary medical treatment of individuals under the
influence of alcohol or drugs. The regulation permits a medical
practitioner to take into account an individual's use of drugs
in determining appropriate medical treatment. Section 36.209
provides that the prohibitions on discrimination in this part do
not apply when the public accommodation acts on the basis of
current illegal use of drugs. Although those prohibitions do
apply under paragraph (b), the limitations established under
this part also apply. Thus, under Sec.36.208, a health care
provider or other public accommodation covered under
Sec.36.209(b) may exclude an individual whose current illegal
use of drugs poses a direct threat to the health or safety of
others, and, under Sec.36.301, a public accommodation may impose
or apply eligibility criteria that are necessary for the
provision of the services being offered, and may impose
legitimate safety requirements that are necessary for safe
operation. These same limitations also apply to individuals with
disabilities who use alcohol or prescription drugs. The
Department believes that these provisions address this
commenter's concerns.
Other commenters pointed out that abstention from the use of
drugs is an essential condition for participation in some drug
rehabilitation programs, and may be a necessary requirement in
inpatient or residential settings. The Department believes that
this comment is well-founded. Congress clearly did not intend to
exclude from drug treatment programs the very individuals who
need such programs because of their use of drugs. In such a
situation, however, once an individual has been admitted to a
program, abstention may be a necessary and appropriate condition
to continued participation. The final rule therefore provides
that a drug rehabilitation or treatment program may deny
participation to individuals who use drugs while they are in the
program.
Paragraph (c) expresses Congress' intention that the Act be
neutral with respect to testing for illegal use of drugs. This
paragraph implements the provision in section 510(b) of the Act
that allows entities "to adopt or administer reasonable policies
or procedures, including but not limited to drug testing,'' that
ensure an individual who is participating in a supervised
rehabilitation program, or who has completed such a program or
otherwise been rehabilitated successfully, is no longer engaging
in the illegal use of drugs. Paragraph (c) is not to be
construed to encourage, prohibit, restrict, or authorize the
conducting of testing for the illegal use of drugs.
Paragraph (c) of Sec.36.209 clarifies that it is not a violation
of this part to adopt or administer reasonable policies or
procedures to ensure that an individual who formerly engaged in
the illegal use of drugs is not currently engaging in illegal
use of drugs. Any such policies or procedures must, of course,
be reasonable, and must be designed to identify accurately the
illegal use of drugs. This paragraph does not authorize
inquiries, tests, or other procedures that would disclose use of
substances that are not controlled substances or are taken under
supervision by a licensed health care professional, or other
uses authorized by the Controlled Substances Act or other
provisions of Federal law, because such uses are not included in
the definition of "illegal use of drugs.''
One commenter argued that the rule should permit testing for
lawful use of prescription drugs, but most favored the
explanation that tests must be limited to unlawful use in order
to avoid revealing the use of prescription medicine used to
treat disabilities. Tests revealing legal use of prescription
drugs might violate the prohibition in Sec.36.301 of attempts to
unnecessarily identify the existence of a disability.
Section 36.210 Smoking
Section 36.210 restates the clarification in section 501(b) of
the Act that the Act does not preclude the prohibition of, or
imposition of restrictions on, smoking. Some commenters argued
that Sec.36.210 does not go far enough, and that the regulation
should prohibit smoking in all places of public accommodation.
The reference to smoking in section 501 merely clarifies that
the Act does not require public accommodations to accommodate
smokers by permitting them to smoke in places of public
accommodations.
Section 36.211 Maintenance of Accessible Features
Section 36.211 provides that a public accommodation shall
maintain in operable working condition those features of
facilities and equipment that are required to be readily
accessible to and usable by persons with disabilities by the Act
or this part. The Act requires that, to the maximum extent
feasible, facilities must be accessible to, and usable by,
individuals with disabilities. This section recognizes that it
is not sufficient to provide features such as accessible routes,
elevators, or ramps, if those features are not maintained in a
manner that enables individuals with disabilities to use them.
Inoperable elevators, locked accessible doors, or "accessible''
routes that are obstructed by furniture, filing cabinets, or
potted plants are neither "accessible to'' nor "usable by''
individuals with disabilities.
Some commenters objected that this section appeared to establish
an absolute requirement and suggested that language from the
preamble be included in the text of the regulation. It is, of
course, impossible to guarantee that mechanical devices will
never fail to operate. Paragraph (b) of the final regulation
provides that this section does not prohibit isolated or
temporary interruptions in service or access due to maintenance
or repairs. This paragraph is intended to clarify that temporary
obstructions or isolated instances of mechanical failure would
not be considered violations of the Act or this part. However,
allowing obstructions or "out of service'' equipment to persist
beyond a reasonable period of time would violate this part, as
would repeated mechanical failures due to improper or inadequate
maintenance. Failure of the public accommodation to ensure that
accessible routes are properly maintained and free of
obstructions, or failure to arrange prompt repair of inoperable
elevators or other equipment intended to provide access, would
also violate this part.
Other commenters requested that this section be expanded to
include specific requirements for inspection and maintenance of
equipment, for training staff in the proper operation of
equipment, and for maintenance of specific items. The Department
believes that this section properly establishes the general
requirement for maintaining access and that further, more
detailed requirements are not necessary.
Section 36.212 Insurance
The Department received numerous comments on proposed
Sec.36.212. Most supported the proposed regulation but felt that
it did not go far enough in protecting individuals with
disabilities and persons associated with them from
discrimination. Many commenters argued that language from the
preamble to the proposed regulation should be included in the
text of the final regulation. Other commenters argued that even
that language was not strong enough, and that more stringent
standards should be established. Only a few commenters argued
that the Act does not apply to insurance underwriting practices
or the terms of insurance contracts. These commenters cited
language from the Senate committee report (S. Rep. No. 116,
101st Cong., 1st Sess., at 84 - 86 (1989) (hereinafter "Senate
report'')), indicating that Congress did not intend to affect
existing insurance practices.
The Department has decided to adopt the language of the proposed
rule without change. Sections 36.212 (a) and (b) restate section
501(c) of the Act, which provides that the Act shall not be
construed to restrict certain insurance practices on the part of
insurance companies and employers, as long as such practices are
not used to evade the purposes of the Act. Section 36.212(c) is
a specific application of Sec.36.202(a), which prohibits denial
of participation on the basis of disability. It provides that a
public accommodation may not refuse to serve an individual with
a disability because of limitations on coverage or rates in its
insurance policies (see Judiciary report at 56).
Many commenters supported the requirements of Sec.36.212(c) in
the proposed rule because it addressed an important reason for
denial of services by public accommodations. One commenter
argued that services could be denied if the insurance coverage
required exclusion of people whose disabilities were reasonably
related to the risks involved in that particular place of public
accommodation. Sections 36.208 and 36.301 establish criteria for
denial of participation on the basis of legitimate safety
concerns. This paragraph does not prohibit consideration of such
concerns in insurance policies, but provides that any exclusion
on the basis of disability must be based on the permissible
criteria, rather than on the terms of the insurance contract.
Language in the committee reports indicates that Congress
intended to reach insurance practices by prohibiting
differential treatment of individuals with disabilities in
insurance offered by public accommodations unless the
differences are justified. "Under the ADA, a person with a
disability cannot be denied insurance or be subject to different
terms or conditions of insurance based on disability alone, if
the disability does not pose increased risks'' (Senate report at
84; Education and Labor report at 136). Section 501(c) (1) of
the Act was intended to emphasize that "insurers may continue to
sell to and underwrite individuals applying for life, health, or
other insurance on an individually underwritten basis, or to
service such insurance products, so long as the standards used
are based on sound actuarial data and not on speculation''
(Judiciary report at 70 (emphasis added); see also Senate report
at 85; Education and Labor report at 137).
The committee reports indicate that underwriting and
classification of risks must be "based on sound actuarial
principles or be related to actual or reasonably anticipated
experience'' (see, e.g., Judiciary report at 71). Moreover,
"while a plan which limits certain kinds of coverage based on
classification of risk would be allowed * * *, the plan may not
refuse to insure, or refuse to continue to insure, or limit the
amount, extent, or kind of coverage available to an individual,
or charge a different rate for the same coverage solely because
of a physical or mental impairment, except where the refusal,
limitation, or rate differential is based on sound actuarial
principles or is related to actual or reasonably anticipated
experience'' (Senate report at 85; Education and Labor report at
136 - 37; Judiciary report at 71). The ADA, therefore, does not
prohibit use of legitimate actuarial considerations to justify
differential treatment of individuals with disabilities in
insurance.
The committee reports provide some guidance on how
nondiscrimination principles in the disability rights area
relate to insurance practices. For example, a person who is
blind may not be denied coverage based on blindness independent
of actuarial risk classification. With respect to group health
insurance coverage, an individual with a pre-existing condition
may be denied coverage for that condition for the period
specified in the policy, but cannot be denied coverage for
illness or injuries unrelated to the pre-existing condition.
Also, a public accommodation may offer insurance policies that
limit coverage for certain procedures or treatments, but may not
entirely deny coverage to a person with a disability.
The Department requested comment on the extent to which data
that would establish statistically sound correlations are
available. Numerous commenters cited pervasive problems in the
availability and cost of insurance for individuals with
disabilities and parents of children with disabilities. No
commenters cited specific data, or sources of data, to support
specific exclusionary practices. Several commenters reported
that, even when statistics are available, they are often
outdated and do not reflect current medical technology and
treatment methods. Concern was expressed that adequate efforts
are not made to distinguish those individuals who are high users
of health care from individuals in the same diagnostic groups
who may be low users of health care. One insurer reported that
"hard data and actuarial statistics are not available to provide
precise numerical justifications for every underwriting
determination,'' but argued that decisions may be based on
"logical principles generally accepted by actuarial science and
fully consistent with state insurance laws.'' The commenter
urged that the Department recognize the validity of information
other than statistical data as a basis for insurance
determinations.
The most frequent comment was a recommendation that the final
regulation should require the insurance company to provide a
copy of the actuarial data on which its actions are based when
requested by the applicant. Such a requirement would be beyond
anything contemplated by the Act or by Congress and has
therefore not been included in the Department's final rule.
Because the legislative history of the ADA clarifies that
different treatment of individuals with disabilities in
insurance may be justified by sound actuarial data, such
actuarial data will be critical to any potential litigation on
this issue. This information would presumably be obtainable in a
court proceeding where the insurer's actuarial data was the
basis for different treatment of persons with disabilities. In
addition, under some State regulatory schemes, insurers may have
to file such actuarial information with the State regulatory
agency and this information may be obtainable at the State
level.
A few commenters representing the insurance industry conceded
that underwriting practices in life and health insurance are
clearly covered, but argued that property and casualty insurance
are not covered. The Department sees no reason for this
distinction. Although life and health insurance are the areas
where the regulation will have its greatest application, the Act
applies equally to unjustified discrimination in all types of
insurance provided by public accommodations. A number of
commenters, for example, reported difficulties in obtaining
automobile insurance because of their disabilities, despite
their having good driving records.
Section 36.213 Relationship of Subpart 8 to Subparts C and D
This section explains that subpart B sets forth the general
principles of nondiscrimination applicable to all entities
subject to this regulation, while subparts C and D provide
guidance on the application of this part to specific situations.
The specific provisions in subparts C and D, including the
limitations on those provisions, control over the general
provisions in circumstances where both specific and general
provisions apply. Resort to the general provisions of subpart B
is only appropriate where there are no applicable specific rules
of guidance in subparts C or D. This interaction between the
specific requirements and the general requirements operates with
regard to contractual obligations as well.
One illustration of this principle is its application to the
obligation of a public accommodation to provide access to
services by removal of architectural barriers or by alternatives
to barrier removal. The general requirement, established in
subpart B by Sec.36.203, is that a public accommodation must
provide its services to individuals with disabilities in the
most integrated setting appropriate. This general requirement
would appear to categorically prohibit "segregated'' seating for
persons in wheelchairs. Section 36.304, however, only requires
removal of architectural barriers to the extent that removal is
"readily achievable.'' If providing access to all areas of a
restaurant, for example, would not be "readily achievable,'' a
public accommodation may provide access to selected areas only.
Also, Sec.36.305 provides that, where barrier removal is not
readily achievable, a public accommodation may use alternative,
readily achievable methods of making services available, such as
curbside service or home delivery. Thus, in this manner, the
specific requirements of Sec..36.304 and 36.305 control over the
general requirement of Sec.36.203.
Subpart C -- Specific Requirements
In general, subpart C implements the "specific prohibitions''
that comprise section 302(b)(2) of the ADA. It also addresses
the requirements of section 309 of the ADA regarding
examinations and courses.
Section 36.301 Eligibility Criteria
Section 36.301 of the rule prohibits the imposition or
application of eligibility criteria that screen out or tend to
screen out an individual with a disability or any class of
individuals with disabilities from fully and equally enjoying
any goods, services, facilities, privileges, advantages, and
accommodations, unless such criteria can be shown to be
necessary for the provision of the goods, services, facilities,
privileges, advantages, or accommodations being offered. This
prohibition is based on section 302(b)(2)(A)(i) of the ADA.
It would violate this section to establish exclusive or
segregative eligibility criteria that would bar, for example,
all persons who are deaf from playing on a golf course or all
individuals with cerebral palsy from attending a movie theater,
or limit the seating of individuals with Down's syndrome to only
particular areas of a restaurant. The wishes, tastes, or
preferences of other customers may not be asserted to justify
criteria that would exclude or segregate individuals with
disabilities.
Section 36.301 also prohibits attempts by a public accommodation
to unnecessarily identify the existence of a disability; for
example, it would be a violation of this section for a retail
store to require an individual to state on a credit application
whether the applicant has epilepsy, mental illness, or any other
disability, or to inquire unnecessarily whether an individual
has HIV disease.
Section 36.301 also prohibits policies that unnecessarily impose
requirements or burdens on individuals with disabilities that
are not placed on others. For example, public accommodations may
not require that an individual with a disability be accompanied
by an attendant. As provided by Sec.36.306, however, a public
accommodation is not required to provide services of a personal
nature including assistance in toileting, eating, or dressing.
Paragraph (c) of Sec.36.301 provides that public accommodations
may not place a surcharge on a particular individual with a
disability or any group of individuals with disabilities to
cover the costs of measures, such as the provision of auxiliary
aids and services, barrier removal, alternatives to barrier
removal, and reasonable modifications in policies, practices,
and procedures, that are required to provide that individual or
group with the nondiscriminatory treatment required by the Act
or this part.
A number of commenters inquired as to whether deposits required
for the use of auxiliary aids, such as assistive listening
devices, are prohibited surcharges. It is the Department's view
that reasonable, completely refundable, deposits are not to be
considered surcharges prohibited by this section. Requiring
deposits is an important means of ensuring the availability of
equipment necessary to ensure compliance with the ADA.
Other commenters sought clarification as to whether
Sec.36.301(c) prohibits professionals from charging for the
additional time that it may take in certain cases to provide
services to an individual with disabilities. The Department does
not intend Sec.36.301(c) to prohibit professionals who bill on
the basis of time from charging individuals with disabilities on
that basis. However, fees may not be charged for the provision
of auxiliary aids and services, barrier removal, alternatives to
barrier removal, reasonable modifications in policies,
practices, and procedures, or any other measures necessary to
ensure compliance with the ADA.
Other commenters inquired as to whether day care centers may
charge for extra services provided to individuals with
disabilities. As stated above, Sec.36.302(c) is intended only to
prohibit charges for measures necessary to achieve compliance
with the ADA.
Another commenter asserted that charges may be assessed for home
delivery provided as an alternative to barrier removal under
Sec.36.305, when home delivery is provided to all customers for
a fee. Charges for home delivery are permissible if home
delivery is not considered an alternative to barrier removal. If
the public accommodation offers an alternative, such as curb,
carry-out, or sidewalk service for which no surcharge is
assessed, then it may charge for home delivery in accordance
with its standard pricing for home delivery.
In addition, Sec.36.301 prohibits the imposition of criteria
that "tend to'' screen out an individual with a disability. This
concept, which is derived from current regulations under section
504 (see, e.g., 45 CFR 84.13), makes it discriminatory to impose
policies or criteria that, while not creating a direct bar to
individuals with disabilities, indirectly prevent or limit their
ability to participate. For example, requiring presentation of a
driver's license as the sole means of identification for
purposes of paying by check would violate this section in
situations where, for example, individuals with severe vision
impairments or developmental disabilities or epilepsy are
ineligible to receive a driver's license and the use of an
alternative means of identification, such as another photo I.D.
or credit card, is feasible.
A public accommodation may, however, impose neutral rules and
criteria that screen out, or tend to screen out, individuals
with disabilities, if the criteria are necessary for the safe
operation of the public accommodation. Examples of safety
qualifications that would be justifiable in appropriate
circumstances would include height requirements for certain
amusement park rides or a requirement that all participants in a
recreational rafting expedition be able to meet a necessary
level of swimming proficiency. Safety requirements must be based
on actual risks and not on speculation, stereotypes, or
generalizations about individuals with disabilities.
Section 36.302 Modifications in Policies, Practices, or
Procedures
Section 36.302 of the rule prohibits the failure to make
reasonable modifications in policies, practices, and procedures
when such modifications may be necessary to afford any goods,
services, facilities, privileges, advantages, or accommodations,
unless the entity can demonstrate that making such modifications
would fundamentally alter the nature of such goods, services,
facilities, privileges, advantages, or accommodations. This
prohibition is based on section 302(b)(2)(A)(ii) of the ADA.
For example, a parking facility would be required to modify a
rule barring all vans or all vans with raised roofs, if an
individual who uses a wheelchair-accessible van wishes to park
in that facility, and if overhead structures are high enough to
accommodate the height of the van. A department store may need
to modify a policy of only permitting one person at a time in a
dressing room, if an individual with mental retardation needs
and requests assistance in dressing from a companion. Public
accommodations may need to revise operational policies to ensure
that services are available to individuals with disabilities.
For instance, a hotel may need to adopt a policy of keeping an
accessible room unoccupied until an individual with a disability
arrives at the hotel, assuming the individual has properly
reserved the room.
One example of application of this principle is specifically
included in a new Sec.36.302(d) on check-out aisles. That
paragraph provides that a store with check-out aisles must
ensure that an adequate number of accessible check-out aisles is
kept open during store hours, or must otherwise modify its
policies and practices, in order to ensure that an equivalent
level of convenient service is provided to individuals with
disabilities as is provided to others. For example, if only one
check-out aisle is accessible, and it is generally used for
express service, one way of providing equivalent service is to
allow persons with mobility impairments to make all of their
purchases at that aisle. This principle also applies with
respect to other accessible elements and services. For example,
a particular bank may be in compliance with the accessibility
guidelines for new construction incorporated in appendix A with
respect to automated teller machines (ATM) at a new branch
office by providing one accessible walk-up machine at that
location, even though an adjacent walk-up ATM is not accessible
and the drive-up ATM is not accessible. However, the bank would
be in violation of this section if the accessible ATM was
located in a lobby that was locked during evening hours while
the drive-up ATM was available to customers without disabilities
during those same hours. The bank would need to ensure that the
accessible ATM was available to customers during the hours that
any of the other ATM's was available.
A number of commenters inquired as to the relationship between
this section and Sec.36.307, "Accessible or special goods.''
Under Sec.36.307, a public accommodation is not required to
alter its inventory to include accessible or special goods that
are designed for, or facilitate use by, individuals with
disabilities. The rule enunciated in Sec.36.307 is consistent
with the "fundamental alteration'' defense to the reasonable
modifications requirement of Sec.36.302. Therefore, Sec.36.302
would not require the inventory of goods provided by a public
accommodation to be altered to include goods with accessibility
features. For example, Sec.36.302 would not require a bookstore
to stock Brailled books or order Brailled books, if it does not
do so in the normal course of its business.
The rule does not require modifications to the legitimate areas
of specialization of service providers. Section 36.302(b)
provides that a public accommodation may refer an individual
with a disability to another public accommodation, if that
individual is seeking, or requires, treatment or services
outside of the referring public accommodation's area of
specialization, and if, in the normal course of its operations,
the referring public accommodation would make a similar referral
for an individual without a disability who seeks or requires the
same treatment or services.
For example, it would not be discriminatory for a physician who
specializes only in burn treatment to refer an individual who is
deaf to another physician for treatment of an injury other than
a burn injury. To require a physician to accept patients outside
of his or her specialty would fundamentally alter the nature of
the medical practice and, therefore, not be required by this
section.
A clinic specializing exclusively in drug rehabilitation could
similarly refuse to treat a person who is not a drug addict, but
could not refuse to treat a person who is a drug addict simply
because the patient tests positive for HIV. Conversely, a clinic
that specializes in the treatment of individuals with HIV could
refuse to treat an individual that does not have HIV, but could
not refuse to treat a person for HIV infection simply because
that person is also a drug addict.
Some commenters requested clarification as to how this provision
would apply to situations where manifestations of the disability
in question, itself, would raise complications requiring the
expertise of a different practitioner. It is not the
Department's intention in Sec.36.302(b) to prohibit a physician
from referring an individual with a disability to another
physician, if the disability itself creates specialized
complications for the patient's health that the physician lacks
the experience or knowledge to address (see Education and Labor
report at 106).
Section 36.302(c)(1) requires that a public accommodation modify
its policies, practices, or procedures to permit the use of a
service animal by an individual with a disability in any area
open to the general public. The term "service animal'' is
defined in Sec.36.104 to include guide dogs, signal dogs, or any
other animal individually trained to provide assistance to an
individual with a disability.
A number of commenters pointed to the difficulty of making the
distinction required by the proposed rule between areas open to
the general public and those that are not. The ambiguity and
uncertainty surrounding these provisions has led the Department
to adopt a single standard for all public accommodations.
Section 36.302(c)(1) of the final rule now provides that
"[g]enerally, a public accommodation shall modify policies,
practices, and procedures to permit the use of a service animal
by an individual with a disability.'' This formulation reflects
the general intent of Congress that public accommodations take
the necessary steps to accommodate service animals and to ensure
that individuals with disabilities are not separated from their
service animals. It is intended that the broadest feasible
access be provided to service animals in all places of public
accommodation, including movie theaters, restaurants, hotels,
retail stores, hospitals, and nursing homes (see Education and
Labor report at 106; Judiciary report at 59). The section also
acknowledges, however, that, in rare circumstances,
accommodation of service animals may not be required because a
fundamental alteration would result in the nature of the goods,
services, facilities, privileges, or accommodations offered or
provided, or the safe operation of the public accommodation
would be jeopardized.
As specified in Sec.36.302(c)(2), the rule does not require a
public accommodation to supervise or care for any service
animal. If a service animal must be separated from an individual
with a disability in order to avoid a fundamental alteration or
a threat to safety, it is the responsibility of the individual
with the disability to arrange for the care and supervision of
the animal during the period of separation.
A museum would not be required by Sec.36.302 to modify a policy
barring the touching of delicate works of art in order to
enhance the participation of individuals who are blind, if the
touching threatened the integrity of the work. Damage to a
museum piece would clearly be a fundamental alteration that is
not required by this section.
Section 36.303 Auxiliary Aids and Services.
Section 36.303 of the final rule requires a public accommodation
to take such steps as may be necessary to ensure that no
individual with a disability is excluded, denied services,
segregated or otherwise treated differently than other
individuals because of the absence of auxiliary aids and
services, unless the public accommodation can demonstrate that
taking such steps would fundamentally alter the nature of the
goods, services, facilities, advantages, or accommodations being
offered or would result in an undue burden. This requirement is
based on section 302(b)(2)(A)(iii) of the ADA.
Implicit in this duty to provide auxiliary aids and services is
the underlying obligation of a public accommodation to
communicate effectively with its customers, clients, patients,
or participants who have disabilities affecting hearing, vision,
or speech. To give emphasis to this underlying obligation,
Sec.36.303(c) of the rule incorporates language derived from
section 504 regulations for federally conducted programs (see
e.g., 28 CFR 39.160(a)) that requires that appropriate auxiliary
aids and services be furnished to ensure that communication with
persons with disabilities is as effective as communication with
others.
Auxiliary aids and services include a wide range of services and
devices for ensuring effective communication. Use of the most
advanced technology is not required so long as effective
communication is ensured. The Department's proposed
Sec.36.303(b) provided a list of examples of auxiliary aids and
services that was taken from the definition of auxiliary aids
and services in section 3(1) of the ADA and was supplemented by
examples from regulations implementing section 504 in federally
conducted programs (see e.g., 28 CFR 39.103). A substantial
number of commenters suggested that additional examples be added
to this list. The Department has added several items to this
list but wishes to clarify that the list is not an all-inclusive
or exhaustive catalogue of possible or available auxiliary aids
or services. It is not possible to provide an exhaustive list,
and such an attempt would omit new devices that will become
available with emerging technology.
The Department has added videotext displays, computer-aided
transcription services, and open and closed captioning to the
list of examples. Videotext displays have become an important
means of accessing auditory communications through a public
address system. Transcription services are used to relay aurally
delivered material almost simultaneously in written form to
persons who are deaf or hard of hearing. This technology is
often used at conferences, conventions, and hearings. While the
proposed rule expressly included television decoder equipment as
an auxiliary aid or service, it did not mention captioning
itself. The final rule rectifies this omission by mentioning
both closed and open captioning.
In this section, the Department has changed the proposed rule's
phrase, "orally delivered materials,'' to the phrase, "aurally
delivered materials.'' This new phrase tracks the language in
the definition of "auxiliary aids and services'' in section 3 of
the ADA and is meant to include nonverbal sounds and alarms and
computer-generated speech.
Several persons and organizations requested that the Department
replace the term "telecommunications devices for deaf persons''
or "TDD's'' with the term "text telephone.'' The Department has
declined to do so. The Department is aware that the
Architectural and Transportation Barriers Compliance Board has
used the phrase "text telephone'' in lieu of the statutory term
"TDD'' in its final accessibility guidelines. Title IV of the
ADA, however, uses the term "Telecommunications Device for the
Deaf,'' and the Department believes it would be inappropriate to
abandon this statutory term at this time.
Paragraph (b)(2) lists examples of aids and services for making
visually delivered materials accessible to persons with visual
impairments. Many commenters proposed additional examples such
as signage or mapping, audio description services, secondary
auditory programs (SAP), telebraillers, and reading machines.
While the Department declines to add these items to the list in
the regulation, they may be considered appropriate auxiliary
aids and services.
Paragraph (b)(3) refers to the acquisition or modification of
equipment or devices. For example, tape players used for an
audio-guided tour of a museum exhibit may require the addition
of Brailled adhesive labels to the buttons on a reasonable
number of the tape players to facilitate their use by
individuals who are blind. Similarly, permanent or portable
assistive listening systems for persons with hearing impairments
may be required at a hotel conference center.
Several commenters suggested the addition of current
technological innovations in microelectronics and computerized
control systems (e.g., voice recognition systems, automatic
dialing telephones, and infrared elevator and light control
systems) to the list of auxiliary aids and services. The
Department interprets auxiliary aids and services as those aids
and services designed to provide effective communications, i.
e., making aurally and visually delivered information available
to persons with hearing, speech, and vision impairments. Methods
of making services, programs, or activities accessible to, or
usable by, individuals with mobility or manual dexterity
impairments are addressed by other sections of this part,
including the requirements for modifications in policies,
practices, or procedures (Sec.36.302), the elimination of
existing architectural barriers (Sec.36.304), and the provision
of alternatives to barriers removal (Sec.36.305).
Paragraph (b)(4) refers to other similar services and actions.
Several commenters asked for clarification that "similar
services and actions'' include retrieving items from shelves,
assistance in reaching a marginally accessible seat, pushing a
barrier aside in order to provide an accessible route, or
assistance in removing a sweater or coat. While retrieving an
item from a shelf might be an "auxiliary aid or service'' for a
blind person who could not locate the item without assistance,
it might be a readily achievable alternative to barrier removal
for a person using a wheelchair who could not reach the shelf,
or a reasonable modification to a self-service policy for an
individual who lacked the ability to grasp the item. (Of course,
a store would not be required to provide a personal shopper.) As
explained above, auxiliary aids and services are those aids and
services required to provide effective communications. Other
forms of assistance are more appropriately addressed by other
provisions of the final rule.
The auxiliary aid requirement is a flexible one. A public
accommodation can choose among various alternatives as long as
the result is effective communication. For example, a restaurant
would not be required to provide menus in Braille for patrons
who are blind, if the waiters in the restaurant are made
available to read the menu. Similarly, a clothing boutique would
not be required to have Brailled price tags if sales personnel
provide price information orally upon request; and a bookstore
would not be required to make available a sign language
interpreter, because effective communication can be conducted by
notepad.
A critical determination is what constitutes an effective
auxiliary aid or service. The Department's proposed rule
recommended that, in determining what auxiliary aid to use, the
public accommodation consult with an individual before providing
him or her with a particular auxiliary aid or service. This
suggestion sparked a significant volume of public comment. Many
persons with disabilities, particularly persons who are deaf or
hard of hearing, recommended that the rule should require that
public accommodations give "primary consideration'' to the
"expressed choice'' of an individual with a disability. These
commenters asserted that the proposed rule was inconsistent with
congressional intent of the ADA, with the Department's proposed
rule implementing title II of the ADA, and with longstanding
interpretations of section 504 of the Rehabilitation Act.
Based upon a careful review of the ADA legislative history, the
Department believes that Congress did not intend under title III
to impose upon a public accommodation the requirement that it
give primary consideration to the request of the individual with
a disability. To the contrary, the legislative history
demonstrates congressional intent to strongly encourage
consulting with persons with disabilities. In its analysis of
the ADA's auxiliary aids requirement for public accommodations,
the House Education and Labor Committee stated that it
"expects'' that "public accommodation(s) will consult with the
individual with a disability before providing a particular
auxiliary aid or service'' (Education and Labor report at 107).
Some commenters also cited a different committee statement that
used mandatory language as evidence of legislative intent to
require primary consideration. However, this statement was made
in the context of reasonable accommodations required by title I
with respect to employment (Education and Labor report at 67).
Thus, the Department finds that strongly encouraging
consultation with persons with disabilities, in lieu of
mandating primary consideration of their expressed choice, is
consistent with congressional intent.
The Department wishes to emphasize that public accommodations
must take steps necessary to ensure that an individual with a
disability will not be excluded, denied services, segregated or
otherwise treated differently from other individuals because of
the use of inappropriate or ineffective auxiliary aids. In those
situations requiring an interpreter, the public accommodations
must secure the services of a qualified interpreter, unless an
undue burden would result.
In the analysis of Sec.36.303(c) in the proposed rule, the
Department gave as an example the situation where a note pad and
written materials were insufficient to permit effective
communication in a doctor's office when the matter to be decided
was whether major surgery was necessary. Many commenters
objected to this statement, asserting that it gave the
impression that only decisions about major surgery would merit
the provision of a sign language interpreter. The statement
would, as the commenters also claimed, convey the impression to
other public accommodations that written communications would
meet the regulatory requirements in all but the most extreme
situations. The Department, when using the example of major
surgery, did not intend to limit the provision of interpreter
services to the most extreme situations.
Other situations may also require the use of interpreters to
ensure effective communication depending on the facts of the
particular case. It is not difficult to imagine a wide range of
communications involving areas such as health, legal matters,
and finances that would be sufficiently lengthy or complex to
require an interpreter for effective communication. In some
situations, an effective alternative to use of a notepad or an
interpreter may be the use of a computer terminal upon which the
representative of the public accommodation and the customer or
client can exchange typewritten messages.
Section 36.303(d) specifically addresses requirements for TDD's.
Partly because of the availability of telecommunications relay
services to be established under title IV of the ADA,
Sec.36.303(d)(2) provides that a public accommodation is not
required to use a telecommunication device for the deaf (TDD) in
receiving or making telephone calls incident to its operations.
Several commenters were concerned that relay services would not
be sufficient to provide effective access in a number of
situations. Commenters argued that relay systems (1) do not
provide effective access to the automated systems that require
the caller to respond by pushing a button on a touch tone phone,
(2) cannot operate fast enough to convey messages on answering
machines, or to permit a TDD user to leave a recorded message,
and (3) are not appropriate for calling crisis lines relating to
such matters as rape, domestic violence, child abuse, and drugs
where confidentiality is a concern. The Department believes that
it is more appropriate for the Federal Communications Commission
to address these issues in its rulemaking under title IV.
A public accommodation is, however, required to make a TDD
available to an individual with impaired hearing or speech, if
it customarily offers telephone service to its customers,
clients, patients, or participants on more than an incidental
convenience basis. Where entry to a place of public
accommodation requires use of a security entrance telephone, a
TDD or other effective means of communication must be provided
for use by an individual with impaired hearing or speech.
In other words, individual retail stores, doctors' offices,
restaurants, or similar establishments are not required by this
section to have TDD's, because TDD users will be able to make
inquiries, appointments, or reservations with such
establishments through the relay system established under title
IV of the ADA. The public accommodation will likewise be able to
contact TDD users through the relay system. On the other hand,
hotels, hospitals, and other similar establishments that offer
nondisabled individuals the opportunity to make outgoing
telephone calls on more than an incidental convenience basis
must provide a TDD on request.
Section 36.303(e) requires places of lodging that provide
televisions in five or more guest rooms and hospitals to
provide, upon request, a means for decoding closed captions for
use by an individual with impaired hearing. Hotels should also
provide a TDD or similar device at the front desk in order to
take calls from guests who use TDD's in their rooms. In this way
guests with hearing impairments can avail themselves of such
hotel services as making inquiries of the front desk and
ordering room service. The term "hospital'' is used in its
general sense and should be interpreted broadly.
Movie theaters are not required by Sec.36.303 to present
open-captioned films. However, other public accommodations that
impart verbal information through soundtracks on films, video
tapes, or slide shows are required to make such information
accessible to persons with hearing impairments. Captioning is
one means to make the information accessible to individuals with
disabilities.
The rule specifies that auxiliary aids and services include the
acquisition or modification of equipment or devices. For
example, tape players used for an audio-guided tour of a museum
exhibit may require the addition of Brailled adhesive labels to
the buttons on a reasonable number of the tape players to
facilitate their use by individuals who are blind. Similarly, a
hotel conference center may need to provide permanent or
portable assistive listening systems for persons with hearing
impairments.
As provided in Sec.36.303(f), a public accommodation is not
required to provide any particular aid or service that would
result either in a fundamental alteration in the nature of the
goods, services, facilities, privileges, advantages, or
accommodations offered or in an undue burden. Both of these
statutory limitations are derived from existing regulations and
caselaw under section 504 and are to be applied on a
case-by-case basis (see, e.g., 28 CFR 39.160(d) and Southeastern
Community College v. Davis, 442 U.S. 397 (1979)). Congress
intended that "undue burden'' under Sec.36.303 and "undue
hardship,'' which is used in the employment provisions of title
I of the ADA, should be determined on a case-by-case basis under
the same standards and in light of the same factors (Judiciary
report at 59). The rule, therefore, in accordance with the
definition of undue hardship in section 101(10) of the ADA,
defines undue burden as "significant difficulty or expense''
(see Sec..36.104 and 36.303(a)) and requires that undue burden
be determined in light of the factors listed in the definition
in 36.104.
Consistent with regulations implementing section 504 in
federally conducted programs (see, e.g., 28 CFR 39.160(d)),
Sec.36.303(f) provides that the fact that the provision of a
particular auxiliary aid or service would result in an undue
burden does not relieve a public accommodation from the duty to
furnish an alternative auxiliary aid or service, if available,
that would not result in such a burden.
Section 36.303(g) of the proposed rule has been deleted from
this section and included in a new Sec.36.306. That new section
continues to make clear that the auxiliary aids requirement does
not mandate the provision of individually prescribed devices,
such as prescription eyeglasses or hearing aids.
The costs of compliance with the requirements of this section
may not be financed by surcharges limited to particular
individuals with disabilities or any group of individuals with
disabilities (Sec.36.301(c)).
Section 36.304 Removal of Barriers
Section 36.304 requires the removal of architectural barriers
and communication barriers that are structural in nature in
existing facilities, where such removal is readily achievable,
i.e., easily accomplishable and able to be carried out without
much difficulty or expense. This requirement is based on section
302(b)(2)(A)(iv) of the ADA.
A number of commenters interpreted the phrase "communication
barriers that are structural in nature'' broadly to encompass
the provision of communications devices such as TDD's, telephone
handset amplifiers, assistive listening devices, and digital
check-out displays. The statute, however, as read by the
Department, limits the application of the phrase "communications
barriers that are structural in nature'' to those barriers that
are an integral part of the physical structure of a facility. In
addition to the communications barriers posed by permanent
signage and alarm systems noted by Congress (see Education and
Labor report at 110), the Department would also include among
the communications barriers covered by Sec.36.304 the failure to
provide adequate sound buffers, and the presence of physical
partitions that hamper the passage of sound waves between
employees and customers. Given that Sec.36.304's proper focus is
on the removal of physical barriers, the Department believes
that the obligation to provide communications equipment and
devices such as TDD's, telephone handset amplifiers, assistive
listening devices, and digital check-out displays is more
appropriately determined by the requirements for auxiliary aids
and services under Sec.36.303 (see Education and Labor report at
107 - 108). The obligation to remove communications barriers
that are structural in nature under Sec.36.304, of course, is
independent of any obligation to provide auxiliary aids and
services under Sec.36.303.
The statutory provision also requires the readily achievable
removal of certain barriers in existing vehicles and rail
passenger cars. This transportation requirement is not included
in Sec.36.304, but rather in Sec.36.310(b) of the rule.
In striking a balance between guaranteeing access to individuals
with disabilities and recognizing the legitimate cost concerns
of businesses and other private entities, the ADA establishes
different standards for existing facilities and new
construction. In existing facilities, which are the subject of
Sec.36.304, where retrofitting may prove costly, a less rigorous
degree of accessibility is required than in the case of new
construction and alterations (see Sec..36.401 - 36.406) where
accessibility can be more conveniently and economically
incorporated in the initial stages of design and construction.
For example, a bank with existing automatic teller machines
(ATM's) would have to remove barriers to the use of the ATM's,
if it is readily achievable to do so. Whether or not it is
necessary to take actions such as ramping a few steps or raising
or lowering an ATM would be determined by whether the actions
can be accomplished easily and without much difficulty or
expense.
On the other hand, a newly constructed bank with ATM's would be
required by Sec.36.401 to have an ATM that is "readily
accessible to and usable by'' persons with disabilities in
accordance with accessibility guidelines incorporated under
Sec.36.406.
The requirement to remove architectural barriers includes the
removal of physical barriers of any kind. For example,
Sec.36.304 requires the removal, when readily achievable, of
barriers caused by the location of temporary or movable
structures, such as furniture, equipment, and display racks. In
order to provide access to individuals who use wheelchairs, for
example, restaurants may need to rearrange tables and chairs,
and department stores may need to reconfigure display racks and
shelves. As stated in Sec.36.304(f), such actions are not
readily achievable to the extent that they would result in a
significant loss of selling or serving space. If the widening of
all aisles in selling or serving areas is not readily
achievable, then selected widening should be undertaken to
maximize the amount of merchandise or the number of tables
accessible to individuals who use wheelchairs. Access to goods
and services provided in any remaining inaccessible areas must
be made available through alternative methods to barrier
removal, as required by Sec.36.305.
Because the purpose of title III of the ADA is to ensure that
public accommodations are accessible to their customers,
clients, or patrons (as opposed to their employees, who are the
focus of title I), the obligation to remove barriers under
Sec.36.304 does not extend to areas of a facility that are used
exclusively as employee work areas.
Section 36.304(b) provides a wide-ranging list of the types of
modest measures that may be taken to remove barriers and that
are likely to be readily achievable. The list includes examples
of measures, such as adding raised letter markings on elevator
control buttons and installing flashing alarm lights, that would
be used to remove communications barriers that are structural in
nature. It is not an exhaustive list, but merely an illustrative
one. Moreover, the inclusion of a measure on this list does not
mean that it is readily achievable in all cases. Whether or not
any of these measures is readily achievable is to be determined
on a case-by-case basis in light of the particular circumstances
presented and the factors listed in the definition of readily
achievable (Sec.36.104).
A public accommodation generally would not be required to remove
a barrier to physical access posed by a flight of steps, if
removal would require extensive ramping or an elevator. Ramping
a single step, however, will likely be readily achievable, and
ramping several steps will in many circumstances also be readily
achievable. The readily achievable standard does not require
barrier removal that requires extensive restructuring or
burdensome expense. Thus, where it is not readily achievable to
do, the ADA would not require a restaurant to provide access to
a restroom reachable only by a flight of stairs.
Like Sec.36.405, this section permits deference to the national
interest in preserving significant historic structures. Barrier
removal would not be considered "readily achievable'' if it
would threaten or destroy the historic significance of a
building or facility that is eligible for listing in the
National Register of Historic Places under the National Historic
Preservation Act (16 U.S.C. 470, et seq.), or is designated as
historic under State or local law.
The readily achievable defense requires a less demanding level
of exertion by a public accommodation than does the undue burden
defense to the auxiliary aids requirements of Sec.36.303. In
that sense, it can be characterized as a "lower'' standard than
the undue burden standard. The readily achievable defense is
also less demanding than the undue hardship defense in section
102(b)(5) of the ADA, which limits the obligation to make
reasonable accommodation in employment. Barrier removal measures
that are not easily accomplishable and are not able to be
carried out without much difficulty or expense are not required
under the readily achievable standard, even if they do not
impose an undue burden or an undue hardship.
Section 36.304(f)(1) of the proposed rule, which stated that
"barrier removal is not readily achievable if it would result in
significant loss of profit or significant loss of efficiency of
operation,'' has been deleted from the final rule. Many
commenters objected to this provision because it impermissibly
introduced the notion of profit into a statutory standard that
did not include it. Concern was expressed that, in order for an
action not to be considered readily achievable, a public
accommodation would inappropriately have to show, for example,
not only that the action could not be done without "much
difficulty or expense'', but that a significant loss of profit
would result as well. In addition, some commenters asserted use
of the word "significant,'' which is used in the definition of
undue hardship under title I (the standard for interpreting the
meaning of undue burden as a defense to title III's auxiliary
aids requirements) (see Sec..36.104, 36.303(f)), blurs the fact
that the readily achievable standard requires a lower level of
effort on the part of a public accommodation than does the undue
burden standard.
The obligation to engage in readily achievable barrier removal
is a continuing one. Over time, barrier removal that initially
was not readily achievable may later be required because of
changed circumstances. Many commenters expressed support for the
Department's position that the obligation to comply with
Sec.36.304 is continuing in nature. Some urged that the rule
require public accommodations to assess their compliance on at
least an annual basis in light of changes in resources and other
factors that would be relevant to determining what barrier
removal measures would be readily achievable.
Although the obligation to engage in readily achievable barrier
removal is clearly a continuing duty, the Department has
declined to establish any independent requirement for an annual
assessment or self-evaluation. It is best left to the public
accommodations subject to Sec.36.304 to establish policies to
assess compliance that are appropriate to the particular
circumstances faced by the wide range of public accommodations
covered by the ADA. However, even in the absence of an explicit
regulatory requirement for periodic self-evaluations, the
Department still urges public accommodations to establish
procedures for an ongoing assessment of their compliance with
the ADA's barrier removal requirements. The Department
recommends that this process include appropriate consultation
with individuals with disabilities or organizations representing
them. A serious effort at self-assessment and consultation can
diminish the threat of litigation and save resources by
identifying the most efficient means of providing required
access.
The Department has been asked for guidance on the best means for
public accommodations to comply voluntarily with this section.
Such information is more appropriately part of the Department's
technical assistance effort and will be forthcoming over the
next several months. The Department recommends, however, the
development of an implementation plan designed to achieve
compliance with the ADA's barrier removal requirements before
they become effective on January 26, 1992. Such a plan, if
appropriately designed and diligently executed, could serve as
evidence of a good faith effort to comply with the requirements
of Sec.36.104. In developing an implementation plan for readily
achievable barrier removal, a public accommodation should
consult with local organizations representing persons with
disabilities and solicit their suggestions for cost-effective
means of making individual places of public accommodation
accessible. Such organizations may also be helpful in allocating
scarce resources and establishing priorities. Local associations
of businesses may want to encourage this process and serve as
the forum for discussions on the local level between disability
rights organizations and local businesses.
Section 36.304(c) recommends priorities for public
accommodations in removing barriers in existing facilities.
Because the resources available for barrier removal may not be
adequate to remove all existing barriers at any given time,
Sec.36.304(c) suggests priorities for determining which types of
barriers should be mitigated or eliminated first. The purpose of
these priorities is to facilitate long-term business planning
and to maximize, in light of limited resources, the degree of
effective access that will result from any given level of
expenditure.
Although many commenters expressed support for the concept of
establishing priorities, a significant number objected to their
mandatory nature in the proposed rule. The Department shares the
concern of these commenters that mandatory priorities would
increase the likelihood of litigation and inappropriately reduce
the discretion of public accommodations to determine the most
effective mix of barrier removal measures to undertake in
particular circumstances. Therefore, in the final rule the
priorities are no longer mandatory.
In response to comments that the priorities failed to address
communications issues, the Department wishes to emphasize that
the priorities encompass the removal of communications barriers
that are structural in nature. It would be counter to the ADA's
carefully wrought statutory scheme to include in this provision
the wide range of communication devices that are required by the
ADA's provisions on auxiliary aids and services. The final rule
explicitly includes Brailled and raised letter signage and
visual alarms among the examples of steps to remove barriers
provided in Sec.36.304(c)(2).
Section 36.304(c)(1) places the highest priority on measures
that will enable individuals with disabilities to physically
enter a place of public accommodation. This priority on "getting
through the door'' recognizes that providing actual physical
access to a facility from public sidewalks, public
transportation, or parking is generally preferable to any
alternative arrangements in terms of both business efficiency
and the dignity of individuals with disabilities.
The next priority, which is established in Sec.36.304(c)(2), is
for measures that provide access to those areas of a place of
public accommodation where goods and services are made available
to the public. For example, in a hardware store, to the extent
that it is readily achievable to do so, individuals with
disabilities should be given access not only to assistance at
the front desk, but also access, like that available to other
customers, to the retail display areas of the store.
The Department agrees with those commenters who argued that
access to the areas where goods and services are provided is
generally more important than the provision of restrooms.
Therefore, the final rule reverses priorities two and three of
the proposed rule in order to give lower priority to accessible
restrooms. Consequently, the third priority in the final rule
(Sec.36.304(c)(3)) is for measures to provide access to restroom
facilities and the last priority is placed on any remaining
measures required to remove barriers.
Section 36.304(d) requires that measures taken to remove
barriers under Sec.36.304 be subject to subpart D's requirements
for alterations (except for the path of travel requirements in
Sec.36.403). It only permits deviations from the subpart D
requirements when compliance with those requirements is not
readily achievable. In such cases, Sec.36.304(d) permits
measures to be taken that do not fully comply with the subpart D
requirements, so long as the measures do not pose a significant
risk to the health or safety of individuals with disabilities or
others.
This approach represents a change from the proposed rule which
stated that "readily achievable'' measures taken solely to
remove barriers under Sec.36.304 are exempt from the alterations
requirements of subpart D. The intent of the proposed rule was
to maximize the flexibility of public accommodations in
undertaking barrier removal by allowing deviations from the
technical standards of subpart D. It was thought that allowing
slight deviations would provide access and release additional
resources for expanding the amount of barrier removal that could
be obtained under the readily achievable standard.
Many commenters, however, representing both businesses and
individuals with disabilities, questioned this approach because
of the likelihood that unsafe or ineffective measures would be
taken in the absence of the subpart D standards for alterations
as a reference point. Some advocated a rule requiring strict
compliance with the subpart D standard.
The Department in the final rule has adopted the view of many
commenters that (1) public accommodations should in the first
instance be required to comply with the subpart D standards for
alterations where it is readily achievable to do so and (2)
safe, readily achievable measures must be taken when compliance
with the subpart D standards is not readily achievable.
Reference to the subpart D standards in this manner will promote
certainty and good design at the same time that permitting
slight deviations will expand the amount of barrier removal that
may be achieved under Sec.36.304.
Because of the inconvenience to individuals with disabilities
and the safety problems involved in the use of portable ramps,
Sec.36.304(e) permits the use of a portable ramp to comply with
Sec.36.304(a) only when installation of a permanent ramp is not
readily achievable. In order to promote safety, Sec.36.304(e)
requires that due consideration be given to the incorporation of
features such as nonslip surfaces, railings, anchoring, and
strength of materials in any portable ramp that is used.
Temporary facilities brought in for use at the site of a natural
disaster are subject to the barrier removal requirements of
Sec.36.304.
A number of commenters requested clarification regarding how to
determine when a public accommodation has discharged its
obligation to remove barriers in existing facilities. For
example, is a hotel required by Sec.36.304 to remove barriers in
all of its guest rooms? Or is some lesser percentage adequate? A
new paragraph (g) has been added to Sec.36.304 to address this
issue. The Department believes that the degree of barrier
removal required under Sec.36.304 may be less, but certainly
would not be required to exceed, the standards for alterations
under the ADA Accessibility Guidelines incorporated by subpart D
of this part (ADAAG). The ADA's requirements for readily
achievable barrier removal in existing facilities are intended
to be substantially less rigorous than those for new
construction and alterations. It, therefore, would be obviously
inappropriate to require actions under Sec.36.304 that would
exceed the ADAAG requirements. Hotels, then, in order to satisfy
the requirements of Sec.36.304, would not be required to remove
barriers in a higher percentage of rooms than required by ADAAG.
If relevant standards for alterations are not provided in ADAAG,
then reference should be made to the standards for new
construction.
Section 36.305 Alternatives to Barrier Removal
Section 36.305 specifies that where a public accommodation can
demonstrate that removal of a barrier is not readily achievable,
the public accommodation must make its goods, services,
facilities, privileges, advantages, or accommodations available
through alternative methods, if such methods are readily
achievable. This requirement is based on section 302(b)(2)(A)(v)
of the ADA.
For example, if it is not readily achievable for a retail store
to raise, lower, or remove shelves or to rearrange display racks
to provide accessible aisles, the store must, if readily
achievable, provide a clerk or take other alternative measures
to retrieve inaccessible merchandise. Similarly, if it is not
readily achievable to ramp a long flight of stairs leading to
the front door of a restaurant or a pharmacy, the restaurant or
the pharmacy must take alternative measures, if readily
achievable, such as providing curb service or home delivery. If,
within a restaurant, it is not readily achievable to remove
physical barriers to a certain section of a restaurant, the
restaurant must, where it is readily achievable to do so, offer
the same menu in an accessible area of the restaurant.
Where alternative methods are used to provide access, a public
accommodation may not charge an individual with a disability for
the costs associated with the alternative method (see
Sec.36.301(c)). Further analysis of the issue of charging for
alternative measures may be found in the preamble discussion of
Sec.36.301(c).
In some circumstances, because of security considerations, some
alternative methods may not be readily achievable. The rule does
not require a cashier to leave his or her post to retrieve items
for individuals with disabilities, if there are no other
employees on duty.
Section 36.305(c) of the proposed rule has been deleted and the
requirements have been included in a new Sec.36.306. That
section makes clear that the alternative methods requirement
does not mandate the provision of personal devices, such as
wheelchairs, or services of a personal nature.
In the final rule, Sec.36.305(c) provides specific requirements
regarding alternatives to barrier removal in multiscreen
cinemas. In some situations, it may not be readily achievable to
remove enough barriers to provide access to all of the theaters
of a multiscreen cinema. If that is the case, Sec.36.305(c)
requires the cinema to establish a film rotation schedule that
provides reasonable access for individuals who use wheelchairs
to films being presented by the cinema. It further requires that
reasonable notice be provided to the public as to the location
and time of accessible showings. Methods for providing notice
include appropriate use of the international accessibility
symbol in a cinema's print advertising and the addition of
accessibility information to a cinema's recorded telephone
information line.
Section 36.306 Personal Devices and Services
The final rule includes a new Sec.36.306, entitled "Personal
devices and services.'' Section 36.306 of the proposed rule,
"Readily achievable and undue burden: Factors to be
considered,'' was deleted for the reasons described in the
preamble discussion of the definition of the term "readily
achievable'' in Sec.36.104. In place of Sec..36.303(g) and
36.305(c) of the proposed rule, which addressed the issue of
personal devices and services in the contexts of auxiliary aids
and alternatives to barrier removal, Sec.36.306 provides a
general statement that the regulation does not require the
provision of personal devices and services. This section states
that a public accommodation is not required to provide its
customers, clients, or participants with personal devices, such
as wheelchairs; individually prescribed devices, such as
prescription eyeglasses or hearing aids; or services of a
personal nature including assistance in eating, toileting, or
dressing.
This statement serves as a limitation on all the requirements of
the regulation. The personal devices and services limitation was
intended to have general application in the proposed rule in all
contexts where it was relevant. The final rule, therefore,
clarifies, this point by including a general provision that will
explicitly apply not just to auxiliary aids and services and
alternatives to barrier removal, but across-the-board to include
such relevant areas as modifications in policies, practices, and
procedures (Sec.36.302) and examinations and courses
(Sec.36.309), as well.
The Department wishes to clarify that measures taken as
alternatives to barrier removal, such as retrieving items from
shelves or providing curb service or home delivery, are not to
be considered personal services. Similarly, minimal actions that
may be required as modifications in policies, practices, or
procedures under Sec.36.302, such as a waiter's removing the
cover from a customer's straw, a kitchen's cutting up food into
smaller pieces, or a bank's filling out a deposit slip, are not
services of a personal nature within the meaning of Sec.36.306.
(Of course, such modifications may be required under Sec.36.302
only if they are "reasonable.'') Similarly, this section does
not preclude the short-term loan of personal receivers that are
part of an assistive listening system.
Of course, if personal services are customarily provided to the
customers or clients of a public accommodation, e.g., in a
hospital or senior citizen center, then these personal services
should also be provided to persons with disabilities using the
public accommodation.
Section 36.307 Accessible or Special Goods.
Section 36.307 establishes that the rule does not require a
public accommodation to alter its inventory to include
accessible or special goods with accessibility features that are
designed for, or facilitate use by, individuals with
disabilities. As specified in Sec.36.307(c), accessible or
special goods include such items as Brailled versions of books,
books on audio-cassettes, closed captioned video tapes, special
sizes or lines of clothing, and special foods to meet particular
dietary needs.
The purpose of the ADA's public accommodations requirements is
to ensure accessibility to the goods offered by a public
accommodation, not to alter the nature or mix of goods that the
public accommodation has typically provided. In other words, a
bookstore, for example, must make its facilities and sales
operations accessible to individuals with disabilities, but is
not required to stock Brailled or large print books. Similarly,
a video store must make its facilities and rental operations
accessible, but is not required to stock closed-captioned video
tapes. The Department has been made aware, however, that the
most recent titles in video-tape rental establishments are, in
fact, closed captioned.
Although a public accommodation is not required by Sec.36.307(a)
to modify its inventory, it is required by Sec.36.307(b), at the
request of an individual with disabilities, to order accessible
or special goods that it does not customarily maintain in stock
if, in the normal course of its operation, it makes special
orders for unstocked goods, and if the accessible or special
goods can be obtained from a supplier with whom the public
accommodation customarily does business. For example, a clothing
store would be required to order specially-sized clothing at the
request of an individual with a disability, if it customarily
makes special orders for clothing that it does not keep in
stock, and if the clothing can be obtained from one of the
store's customary suppliers.
One commenter asserted that the proposed rule could be
interpreted to require a store to special order accessible or
special goods of all types, even if only one type is specially
ordered in the normal course of its business. The Department,
however, intends for Sec.36.307(b) to require special orders
only of those particular types of goods for which a public
accommodation normally makes special orders. For example, a book
and recording store would not have to specially order Brailled
books if, in the normal course of its business, it only
specially orders recordings and not books.
Section 36.308 Seating in Assembly Areas.
Section 36.308 establishes specific requirements for removing
barriers to physical access in assembly areas, which include
such facilities as theaters, concert halls, auditoriums, lecture
halls, and conference rooms. This section does not address the
provision of auxiliary aids or the removal of communications
barriers that are structural in nature. These communications
requirements are the focus of other provisions of the regulation
(see Sec..36.303 - 36.304).
Individuals who use wheelchairs historically have been relegated
to inferior seating in the back of assembly areas separate from
accompanying family members and friends. The provisions of
Sec.36.308 are intended to promote integration and equality in
seating.
In some instances it may not be readily achievable for
auditoriums or theaters to remove seats to allow individuals
with wheelchairs to sit next to accompanying family members or
friends. In these situations, the final rule retains the
requirement that the public accommodation provide portable
chairs or other means to allow the accompanying individuals to
sit with the persons in wheelchairs. Persons in wheelchairs
should have the same opportunity to enjoy movies, plays, and
similar events with their families and friends, just as other
patrons do. The final rule specifies that portable chairs or
other means to permit family members or companions to sit with
individuals who use wheelchairs must be provided only when it is
readily achievable to do so.
In order to facilitate seating of wheelchair users who wish to
transfer to existing seating, paragraph (a)(1) of the final rule
adds a requirement that, to the extent readily achievable, a
reasonable number of seats with removable aisle-side armrests
must be provided. Many persons in wheelchairs are able to
transfer to existing seating with this relatively minor
modification. This solution avoids the potential safety hazard
created by the use of portable chairs and fosters integration.
The final ADA Accessibility Guidelines incorporated by subpart D
(ADAAG) also add a requirement regarding aisle seating that was
not in the proposed guidelines. In situations when a person in a
wheelchair transfers to existing seating, the public
accommodation shall provide assistance in handling the
wheelchair of the patron with the disability.
Likewise, consistent vith ADAAG, the final rule adds in
Sec.36.308(a)(1)(ii)(B) a requirement that, to the extent
readily achievable, wheelchair seating provide lines of sight
and choice of admission prices comparable to those for members
of the general public.
Finally, because Congress intended that the requirements for
barrier removal in existing facilities be substantially less
rigorous than those required for new construction and
alterations, the final rule clarifies in Sec.36.308(a)(3) that
in no event can the requirements for existing facilities be
interpreted to exceed the standards for alterations under ADAAG.
For example, Sec.4.33 of ADAAG only requires wheelchair spaces
to be provided in more than one location when the seating
capacity of the assembly area exceeds 300. Therefore, paragraph
(a) of Sec.36.308 may not be interpreted to require readily
achievable dispersal of wheelchair seating in assembly areas
with 300 or fewer seats. Similarly, Sec.4.1.3(19) of ADAAG
requires six accessible wheelchair locations in an assembly area
with 301 to 500 seats. The reasonable number of wheelchair
locations required by paragraph (a), therefore, may be less than
six, but may not be interpreted to exceed six.
Proposed Section 36.309 Purchase of Furniture and Equipment
Section 36.309 of the proposed rule would have required that
newly purchased furniture or equipment made available for use at
a place of public accommodation be accessible, to the extent
such furniture or equipment is available, unless this
requirement would fundamentally alter the goods, services,
facilities, privileges, advantages, or accommodations offered,
or would not be readily achievable. Proposed Sec.36.309 has been
omitted from the final rule because the Department has
determined that its requirements are more properly addressed
under other sections, and because there are currently no
appropriate accessibility standards addressing many types of
furniture and equipment.
Some types of equipment will be required to meet the
accessibility requirements of subpart D. For example, ADAAG
establishes technical and scoping requirements in new
construction and alterations for automated teller machines and
telephones. Purchase or modification of equipment is required in
certain instances by the provisions in Sec..36.201 and 36.202.
For example, an arcade may need to provide accessible video
machines in order to ensure full and equal enjoyment of the
facilities and to provide an opportunity to participate in the
services and facilities it provides. The barrier removal
requirements of Sec.36.304 will apply as well to furniture and
equipment (lowering shelves, rearranging furniture, adding
Braille labels to a vending machine).
Section 36.309 Examinations and Courses
Section 36.309(a) sets forth the general rule that any private
entity that offers examinations or courses related to
applications, licensing, certification, or credentialing for
secondary or postsecondary education, professional, or trade
purposes shall offer such examinations or courses in a place and
manner accessible to persons with disabilities or offer
alternative accessible arrangements for such individuals.
Paragraph (a) restates section 309 of the Americans with
Disabilities Act. Section 309 is intended to fill the gap that
is created when licensing, certification, and other testing
authorities are not covered by section 504 of the Rehabilitation
Act or title II of the ADA. Any such authority that is covered
by section 504, because of the receipt of Federal money, or by
title II, because it is a function of a State or local
government, must make all of its programs accessible to persons
with disabilities, which includes physical access as well as
modifications in the way the test is administered, e.g.,
extended time, written instructions, or assistance of a reader.
Many licensing, certification, and testing authorities are not
covered by section 504, because no Federal money is received;
nor are they covered by title II of the ADA because they are not
State or local agencies. However, States often require the
licenses provided by such authorities in order for an individual
to practice a particular profession or trade. Thus, the
provision was included in the ADA in order to assure that
persons with disabilities are not foreclosed from educational,
professional, or trade opportunities because an examination or
course is conducted in an inaccessible site or without needed
modifications.
As indicated in the "Application'' section of this part
(Sec.36.102), Sec.36.309 applies to any private entity that
offers the specified types of examinations or courses. This is
consistent with section 309 of the Americans with Disabilities
Act, which states that the requirements apply to "any person''
offering examinations or courses.
The Department received a large number of comments on this
section, reflecting the importance of ensuring that the key
gateways to education and employment are open to individuals
with disabilities. The most frequent comments were objections to
the fundamental alteration and undue burden provisions in
Sec..36.309 (b)(3) and (c)(3) and to allowing courses and
examinations to be provided through alternative accessible
arrangements, rather than in an integrated setting.
Although section 309 of the Act does not refer to a fundamental
alteration or undue burden limitation, those limitations do
appear in section 302(b)(2)(A)(iii) of the Act, which
establishes the obligation of public accommodations to provide
auxiliary aids and services. The Department, therefore, included
it in the paragraphs of Sec.36.309 requiring the provision of
auxiliary aids. One commenter argued that similar limitations
should apply to all of the requirements of Sec.36.309, but the
Department did not consider this extension appropriate.
Commenters who objected to permitting "alternative accessible
arrangements'' argued that such arrangements allow segregation
and should not be permitted, unless they are the least
restrictive available alternative, for example, for someone who
cannot leave home. Some commenters made a distinction between
courses, where interaction is an important part of the
educational experience, and examinations, where it may be less
important. Because the statute specifically authorizes
alternative accessible arrangements as a method of meeting the
requirements of section 309, the Department has not adopted this
suggestion. The Department notes, however, that, while
examinations of the type covered by Sec.36.309 may not be
covered elsewhere in the regulation, courses will generally be
offered in a "place of education,'' which is included in the
definition of "place of public accommodation'' in Sec.36.104,
and, therefore, will be subject to the integrated setting
requirement of Sec.36.203.
Section 36.309(b) sets forth specific requirements for
examinations. Examinations covered by this section would include
a bar exam or the Scholastic Aptitude Test prepared by the
Educational Testing Service. Paragraph (b)(1) is adopted from
the Department of Education's section 504 regulation on
admission tests to postsecondary educational programs (34 CFR
104.42(b)(3)). Paragraph (b)(1)(i) requires that a private
entity offering an examination covered by the section must
assure that the examination is selected and administered so as
to best ensure that the examination accurately reflects an
individual's aptitude or achievement level or other factor the
examination purports to measure, rather than reflecting the
individual's impaired sensory, manual, or speaking skills
(except where those skills are the factors that the examination
purports to measure).
Paragraph (b)(1)(ii) requires that any examination specially
designed for individuals with disabilities be offered as often
and in as timely a manner as other examinations. Some commenters
noted that persons with disabilities may be required to travel
long distances when the locations for examinations for
individuals with disabilities are limited, for example, to only
one city in a State instead of a variety of cities. The
Department has therefore revised this paragraph to add a
requirement that such examinations be offered at locations that
are as convenient as the location of other examinations.
Commenters representing organizations that administer tests
wanted to be able to require individuals with disabilities to
provide advance notice and appropriate documentation, at the
applicants' expense, of their disabilities and of any
modifications or aids that would be required. The Department
agrees that such requirements are permissible, provided that
they are not unreasonable and that the deadline for such notice
is no earlier than the deadline for others applying to take the
examination. Requiring individuals with disabilities to file
earlier applications would violate the requirement that
examinations designed for individuals with disabilities be
offered in as timely a manner as other examinations.
Examiners may require evidence that an applicant is entitled to
modifications or aids as required by this section, but requests
for documentation must be reasonable and must be limited to the
need for the modification or aid requested. Appropriate
documentation might include a letter from a physician or other
professional, or evidence of a prior diagnosis or accommodation,
such as eligibility for a special education program. The
applicant may be required to bear the cost of providing such
documentation, but the entity administering the examination
cannot charge the applicant for the cost of any modifications or
auxiliary aids, such as interpreters, provided for the
examination.
Paragraph (b)(1)(iii) requires that examinations be administered
in facilities that are accessible to individuals with
disabilities or alternative accessible arrangements are made.
Paragraph (b)(2) gives examples of modifications to examinations
that may be necessary in order to comply with this section.
These may include providing more time for completion of the
examination or a change in the manner of giving the examination,
e.g., reading the examination to the individual.
Paragraph (b)(3) requires the provision of auxiliary aids and
services, unless the private entity offering the examination can
demonstrate that offering a particular auxiliary aid would
fundamentally alter the examination or result in an undue
burden. Examples of auxiliary aids include taped examinations,
interpreters or other effective methods of making aurally
delivered materials available to individuals with hearing
impairments, readers for individuals with visual impairments or
learning disabilities, and other similar services and actions.
The suggestion that individuals with learning disabilities may
need readers is included, although it does not appear in the
Department of Education regulation, because, in fact, some
individuals with learning disabilities have visual perception
problems and would benefit from a reader.
Many commenters pointed out the importance of ensuring that
modifications provide the individual with a disability an equal
opportunity to demonstrate his or her knowledge or ability. For
example, a reader who is unskilled or lacks knowledge of
specific terminology used in the examination may be unable to
convey the information in the questions or to follow the
applicant's instructions effectively. Commenters pointed out
that, for persons with visual impairments who read Braille,
Braille provides the closest functional equivalent to a printed
test. The Department has, therefore, added Brailled examinations
to the examples of auxiliary aids and services that may be
required. For similar reasons, the Department also added to the
list of examples of auxiliary aids and services large print
examinations and answer sheets; "qualified'' readers; and
transcribers to write answers.
A commenter suggested that the phrase "fundamentally alter the
examination'' in this paragraph of the proposed rule be revised
to more accurately reflect the function affected. In the final
rule the Department has substituted the phrase "fundamentally
alter the measurement of the skills or knowledge the examination
is intended to test.''
Paragraph (b)(4) gives examples of alternative accessible
arrangements. For instance, the private entity might be required
to provide the examination at an individual's home with a
proctor. Alternative arrangements must provide conditions for
individuals with disabilities that are comparable to the
conditions under which other individuals take the examinations.
In other words, an examination cannot be offered to an
individual with a disability in a cold, poorly lit basement, if
other individuals are given the examination in a warm, well lit
classroom.
Some commenters who provide examinations for licensing or
certification for particular occupations or professions urged
that they be permitted to refuse to provide modifications or
aids for persons seeking to take the examinations if those
individuals, because of their disabilities, would be unable to
perform the essential functions of the profession or occupation
for which the examination is given, or unless the disability is
reasonably determined in advance as not being an obstacle to
certification. The Department has not changed its rule based on
this comment. An examination is one stage of a licensing or
certification process. An individual should not be barred from
attempting to pass that stage of the process merely because he
or she might be unable to meet other requirements of the
process. If the examination is not the first stage of the
qualification process, an applicant may be required to complete
the earlier stages prior to being admitted to the examination.
On the other hand, the applicant may not be denied admission to
the examination on the basis of doubts about his or her
abilities to meet requirements that the examination is not
designed to test.
Paragraph (c) sets forth specific requirements for courses.
Paragraph (c)(1) contains the general rule that any course
covered by this section must be modified to ensure that the
place and manner in which the course is given is accessible.
Paragraph (c)(2) gives examples of possible modifications that
might be required, including extending the time permitted for
completion of the course, permitting oral rather than written
delivery of an assignment by a person with a visual impairment,
or adapting the manner in which the course is conducted (i.e.,
providing cassettes of class handouts to an individual with a
visual impairment). In response to comments, the Department has
added to the examples in paragraph (c)(2) specific reference to
distribution of course materials. If course materials are
published and available from other sources, the entity offering
the course may give advance notice of what materials will be
used so as to allow an individual to obtain them in Braille or
on tape but materials provided by the course offerer must be
made available in alternative formats for individuals with
disabilities.
In language similar to that of paragraph (b), paragraph (c)(3)
requires auxiliary aids and services, unless a fundamental
alteration or undue burden would result, and paragraph (c)(4)
requires that courses be administered in accessible facilities.
Paragraph (c)(5) gives examples of alternative accessible
arrangements. These may include provision of the course through
videotape, cassettes, or prepared notes. Alternative
arrangements must provide comparable conditions to those
provided to others, including similar lighting, room
temperature, and the like. An entity offering a variety of
courses, to fulfill continuing education requirements for a
profession, for example, may not limit the selection or choice
of courses available to individuals with disabilities.
Section 36.310 Transportation Provided by Public Accommodations
Section 36.310 contains specific provisions relating to public
accommodations that provide transportation to their clients or
customers. This section has been substantially revised in order
to coordinate the requirements of this section with the
requirements applicable to these transportation systems that
will be contained in the regulations issued by the Secretary of
Transportation pursuant to section 306 of the ADA, to be
codified at 49 CFR part 37. The Department notes that, although
the responsibility for issuing regulations applicable to
transportation systems operated by public accommodations is
divided between this Department and the Department of -
Transportation, enforcement authority is assigned only to the
Department of Justice.
The Department received relatively few comments on this section
of the proposed rule. Most of the comments addressed issues that
are not specifically addressed in this part, such as the
standards for accessible vehicles and the procedure for
determining whether equivalent service is provided. Those
standards will be contained in the regulation issued by the
Department of Transportation. Other commenters raised questions
about the types of transportation that will be subject to this
section. In response to these inquiries, the Department has
revised the list of examples contained in the regulation.
Paragraph (a)(1) states the general rule that covered public
accommodations are subject to all of the specific provisions of
subparts B, C, and D, except as provided in Sec.36.310. Examples
of operations covered by the requirements are listed in
paragraph (a)(2). The stated examples include hotel and motel
airport shuttle services, customer shuttle bus services operated
by private companies and shopping centers, student
transportation, and shuttle operations of recreational
facilities such as stadiums, zoos, amusement parks, and ski
resorts. This brief list is not exhaustive. The section applies
to any fixed route or demand responsive transportation system
operated by a public accommodation for the benefit of its
clients or customers. The section does not apply to
transportation services provided only to employees. Employee
transportation will be subject to the regulations issued by the
Equal Employment Opportunity Commission to implement title I of
the Act. However, if employees and customers or clients are
served by the same transportation system, the provisions of this
section will apply.
Paragraph (b) specifically provides that a public accommodation
shall remove transportation barriers in existing vehicles to the
extent that it is readily achievable to do so, but that the
installation of hydraulic or other lifts is not required.
Paragraph (c) provides that public accommodations subject to
this section shall comply with the requirements for
transportation vehicles and systems contained in the regulations
issued by the Secretary of Transportation.
Subpart D -- New Construction and Alterations
Subpart D implements section 303 of the Act, which requires that
newly constructed or altered places of public accommodation or
commercial facilities be readily accessible to and usable by
individuals with disabilities. This requirement contemplates a
high degree of convenient access. It is intended to ensure that
patrons and employees of places of public accommodation and
employees of commercial facilities are able to get to, enter,
and use the facility.
Potential patrons of places of public accommodation, such as
retail establishments, should be able to get to a store, get
into the store, and get to the areas where goods are being
provided. Employees should have the same types of access,
although those individuals require access to and around the
employment area as well as to the area in which goods and
services are provided.
The ADA is geared to the future -- its goal being that, over
time, access will be the rule, rather than the exception. Thus,
the Act only requires modest expenditures, of the type addressed
in Sec.36.304 of this part, to provide access to existing
facilities not otherwise being altered, but requires all new
construction and alterations to be accessible.
The Act does not require new construction or alterations; it
simply requires that, when a public accommodation or other
private entity undertakes the construction or alteration of a
facility subject to the Act, the newly constructed or altered
facility must be made accessible. This subpart establishes the
requirements for new construction and alterations.
As explained under the discussion of the definition of
"facility,'' Sec.36.104, pending development of specific
requirements, the Department will not apply this subpart to
places of public accommodation located in mobile units, boats,
or other conveyances.
Section 36.401 New Construction
General
Section 36.401 implements the new construction requirements of
the ADA. Section 303 (a)(1) of the Act provides that
discrimination for purposes of section 302(a) of the Act
includes a failure to design and construct facilities for first
occupancy later than 30 months after the date of enactment
(i.e., after January 26, 1993) that are readily accessible to
and usable by individuals with disabilities.
Paragraph 36.401(a)(1) restates the general requirement for
accessible new construction. The proposed rule stated that "any
public accommodation or other private entity responsible for
design and construction'' must ensure that facilities conform to
this requirement. Various commenters suggested that the proposed
language was not consistent with the statute because it
substituted "private entity responsible for design and
construction'' for the statutory language; because it did not
address liability on the part of architects, contractors,
developers, tenants, owners, and other entities; and because it
limited the liability of entities responsible for commercial
facilities. In response, the Department has revised this
paragraph to repeat the language of section 303(a) of the ADA.
The Department will interpret this section in a manner
consistent with the intent of the statute and with the nature of
the responsibilities of the various entities for design, for
construction, or for both.
Designed and Constructed for First Occupancy
According to paragraph (a)(2), a facility is subject to the new
construction requirements only if a completed application for a
building permit or permit extension is filed after January 26,
1992, and the facility is occupied after January 26, 1993.
The proposed rule set forth for comment two alternative ways by
which to determine what facilities are subject to the Act and
what standards apply. Paragraph (a)(2) of the final rule is a
slight variation on Option One in the proposed rule. The reasons
for the Department's choice of Option One are discussed later in
this section.
Paragraph (a)(2) acknowledges that Congress did not contemplate
having actual occupancy be the sole trigger for the
accessibility requirements, because the statute prohibits a
failure to "design and construct for first occupancy,'' rather
than requiring accessibility in facilities actually occupied
after a particular date.
The commenters overwhelmingly agreed with the Department's
proposal to use a date certain; many cited the reasons given in
the preamble to the proposed rule. First, it is helpful for
designers and builders to have a fixed date for accessible
design, so that they can determine accessibility requirements
early in the planning and design stage. It is difficult to
determine accessibility requirements in anticipation of the
actual date of first occupancy because of unpredictable and
uncontrollable events (e.g., strikes affecting suppliers or
labor, or natural disasters) that may delay occupancy. To
redesign or reconstruct portions of a facility if it begins to
appear that occupancy will be later than anticipated would be
quite costly. A fixed date also assists those responsible for
enforcing, or monitoring compliance with, the statute, and those
protected by it.
The Department considered using as a trigger date for
application of the accessibility standards the date on which a
permit is granted. The Department chose instead the date on
which a complete permit application is certified as received by
the appropriate government entity. Almost all commenters agreed
with this choice of a trigger date. This decision is based
partly on information that several months or even years can pass
between application for a permit and receipt of a permit. Design
is virtually complete at the time an application is complete
(i.e., certified to contain all the information required by the
State, county, or local government). After an application is
filed, delays may occur before the permit is granted due to
numerous factors (not necessarily relating to accessibility):
for example, hazardous waste discovered on the property, flood
plain requirements, zoning disputes, or opposition to the
project from various groups. These factors should not require
redesign for accessibility if the application was completed
before January 26, 1992. However, if the facility must be
redesigned for other reasons, such as a change in density or
environmental preservation, and the final permit is based on a
new application, the rule would require accessibility if that
application was certified complete after January 26, 1992.
The certification of receipt of a complete application for a
building permit is an appropriate point in the process because
certifications are issued in writing by governmental
authorities. In addition, this approach presents a clear and
objective standard.
However, a few commenters pointed out that in some jurisdictions
it is not possible to receive a "certification'' that an
application is complete, and suggested that in those cases the
fixed date should be the date on which an application for a
permit is received by the government agency. The Department has
included such a provision in Sec.36.401(a)(2)(i).
The date of January 26, 1992, is relevant only with respect to
the last application for a permit or permit extension for a
facility. Thus, if an entity has applied for only a
"foundation'' permit, the date of that permit application has no
effect, because the entity must also apply for and receive a
permit at a later date for the actual superstructure. In this
case, it is the date of the later application that would
control, unless construction is not completed within the time
allowed by the permit, in which case a third permit would be
issued and the date of the application for that permit would be
determinative for purposes of the rule.
Choice of Option One for Defining "Designed and Constructed for
First Occupancy''
Under the option the Department has chosen for determining
applicability of the new construction standards, a building
would be considered to be "for first occupancy'' after January
26, 1993, only (1) if the last application for a building permit
or permit extension for the facility is certified to be complete
(or, in some jurisdictions, received) by a State, county, or
local government after January 26, 1992, and (2) if the first
certificate of occupancy is issued after January 26, 1993. The
Department also asked for comment on an Option Two, which would
have imposed new construction requirements if a completed
application for a building permit or permit extension was filed
after the enactment of the ADA (July 26, 1990), and the facility
was occupied after January 26, 1993.
The request for comment on this issue drew a large number of
comments expressing a wide range of views. Most business groups
and some disability rights groups favored Option One, and some
business groups and most disability rights groups favored Option
Two. Individuals and government entities were equally divided;
several commenters proposed other options.
Those favoring Option One pointed out that it is more reasonable
in that it allows time for those subject to the new construction
requirements to anticipate those requirements and to receive
technical assistance pursuant to the Act. Numerous commenters
said that time frames for designing and constructing some types
of facilities (for example, health care facilities) can range
from two to four years or more. They expressed concerns that
Option Two, which would apply to some facilities already under
design or construction as of the date the Act was signed, and to
some on which construction began shortly after enactment, could
result in costly redesign or reconstruction of those facilities.
In the same vein, some Option One supporters found Option Two
objectionable on due process grounds. In their view, Option Two
would mean that in July 1991 (upon issuance of the final DOJ
rule) the responsible entities would learn that ADA standards
had been in effect since July 26, 1990, and this would amount to
retroactive application of standards. Numerous commenters
characterized Option Two as having no support in the statute and
Option One as being more consistent with congressional intent.
Those who favored Option Two pointed out that it would include
more facilities within the coverage of the new construction
standards. They argued that because similar accessibility
requirements are in effect under State laws, no hardship would
be imposed by this option. Numerous commenters said that
hardship would also be eliminated in light of their view that
the ADA requires compliance with the Uniform Federal
Accessibility Standards (UFAS) until issuance of DOJ standards.
Those supporting Option Two claimed that it was more consistent
with the statute and its legislative history.
The Department has chosen Option One rather than Option Two,
primarily on the basis of the language of three relevant
sections of the statute. First, section 303(a) requires
compliance with accessibility standards set forth, or
incorporated by reference in, regulations to be issued by the
Department of Justice. Standing alone, this section cannot be
read to require compliance with the Department's standards
before those standards are issued (through this rulemaking).
Second, according to section 310 of the statute, section 303
becomes effective on January 26, 1992. Thus, section 303 cannot
impose requirements on the design of buildings before that date.
Third, while section 306(d) of the Act requires compliance with
UFAS if final regulations have not been issued, that provision
cannot reasonably be read to take effect until July 26, 1991,
the date by which the Department of Justice must issue final
regulations under title III.
Option Two was based on the premise that the interim standards
in section 306(d) take effect as of the ADA's enactment (July
26, 1990), rather than on the date by which the Department of
Justice regulations are due to be issued (July 26, 1991). The
initial clause of section 306(d)(1) itself is silent on this
question:
If final regulations have not been issued pursuant to this
section, for new construction for which a * * * building permit
is obtained prior to the issuance of final regulations * * *
(interim standards apply).
The approach in Option Two relies partly on the language of
section 310 of the Act, which provides that section 306, the
interim standards provision, takes effect on the date of
enactment. Under this interpretation the interim standards
provision would prevail over the operative provision, section
303, which requires that new construction be accessible and
which becomes effective January 26, 1992. This approach would
also require construing the language of section 306(d)(1) to
take effect before the Department's standards are due to be
issued. The preferred reading of section 306 is that it would
require that, if the Department's final standards had not been
issued by July 26, 1991, UFAS would apply to certain buildings
until such time as the Department's standards were issued.
General Substantive Requirements of the New Construction
Provisions
The rule requires, as does the statute, that covered newly
constructed facilities be readily accessible to and usable by
individuals with disabilities. The phrase "readily accessible to
and usable by individuals with disabilities'' is a term that, in
slightly varied formulations, has been used in the Architectural
Barriers Act of 1968, the Fair Housing Act, the regulations
implementing section 504 of the Rehabilitation Act of 1973, and
current accessibility standards. It means, with respect to a
facility or a portion of a facility, that it can be approached,
entered, and used by individuals with disabilities (including
mobility, sensory, and cognitive impairments) easily and
conveniently. A facility that is constructed to meet the
requirements of the rule's accessibility standards will be
considered readily accessible and usable with respect to
construction. To the extent that a particular type or element of
a facility is not specifically addressed by the standards, the
language of this section is the safest guide.
A private entity that renders an "accessible'' building
inaccessible in its operation, through policies or practices,
may be in violation of section 302 of the Act. For example, a
private entity can render an entrance to a facility inaccessible
by keeping an accessible entrance open only during certain hours
(whereas the facility is available to others for a greater
length of time). A facility could similarly be rendered
inaccessible if a person with disabilities is significantly
limited in her or his choice of a range of accommodations.
Ensuring access to a newly constructed facility will include
providing access to the facility from the street or parking lot,
to the extent the responsible entity has control over the route
from those locations. In some cases, the private entity will
have no control over access at the point where streets, curbs,
or sidewalks already exist, and in those instances the entity is
encouraged to request modifications to a sidewalk, including
installation of curb cuts, from a public entity responsible for
them. However, as some commenters pointed out, there is no
obligation for a private entity subject to title III of the ADA
to seek or ensure compliance by a public entity with title II.
Thus, although a locality may have an obligation under title II
of the Act to install curb cuts at a particular location, that
responsibility is separate from the private entity's title III
obligation, and any involvement by a private entity in seeking
cooperation from a public entity is purely voluntary in this
context.
Work Areas
Proposed paragraph 36.401(b) addressed access to employment
areas, rather than to the areas where goods or services are
being provided. The preamble noted that the proposed paragraph
provided guidance for new construction and alterations until
more specific guidance was issued by the ATBCB and reflected in
this Department's regulation. The entire paragraph has been
deleted from this section in the final rule. The concepts of
paragraphs (b) (1), (2), and (5) of the proposed rule are
included, with modifications and expansion, in ADAAG. Paragraphs
(3) and (4) of the proposed rule, concerning fixtures and
equipment, are not included in the rule or in ADAAG.
Some commenters asserted that questions relating to new
construction and alterations of work areas should be addressed
by the EEOC under title I, as employment concerns. However, the
legislative history of the statute clearly indicates that the
new construction and alterations requirements of title III were
intended to ensure accessibility of new facilities to all
individuals, including employees. The language of section 303
sweeps broadly in its application to all public accommodations
and commercial facilities. EEOC's title I regulations will
address accessibility requirements that come into play when
"reasonable accommodation'' to individual employees or
applicants with disabilities is mandated under title I.
The issues dealt with in proposed Sec.36.401(b) (1) and (2) are
now addressed in ADAAG section 4.1.1(3). The Department's
proposed paragraphs would have required that areas that will be
used only by employees as work stations be constructed so that
individuals with disabilities could approach, enter, and exit
the areas. They would not have required that all individual work
stations be constructed or equipped (for example, with shelves
that are accessible or adaptable) to be accessible. This
approach was based on the theory that, as long as an employee
with disabilities could enter the building and get to and around
the employment area, modifications in a particular work station
could be instituted as a "reasonable accommodation'' to that
employee if the modifications were necessary and they did not
constitute an undue hardship.
Almost all of the commenters agreed with the proposal to require
access to a work area but not to require accessibility of each
individual work station. This principle is included in ADAAG
4.1.1(3). Several of the comments related to the requirements of
the proposed ADAAG and have been addressed in the accessibility
standards.
Proposed paragraphs (b) (3) and (4) would have required that
consideration be given to placing fixtures and equipment at
accessible heights in the first instance, and to purchasing new
equipment and fixtures that are adjustable. These paragraphs
have not been included in the final rule because the rule in
most instances does not establish accessibility standards for
purchased equipment. (See discussion elsewhere in the preamble
of proposed Sec.36.309.) While the Department encourages
entities to consider providing accessible or adjustable fixtures
and equipment for employees, this rule does not require them to
do so.
Paragraph (b)(5) of proposed Sec.36.401 clarified that proposed
paragraph (b) did not limit the requirement that employee areas
other than individual work stations must be accessible. For
example, areas that are employee "common use'' areas and are not
solely used as work stations (e.g., employee lounges,
cafeterias, health units, exercise facilities) are treated no
differently under this regulation than other parts of a
building; they must be constructed or altered in compliance with
the accessibility standards. This principle is not stated in
Sec.36.401 but is implicit in the requirements of this section
and ADAAG.
Commercial Facilities in Private Residences
Section 36.401(b) of the final rule is a new provision relating
to commercial facilities located in private residences. The
proposed rule addressed these requirements in the preamble to
Sec.36.207, "Places of public accommodation located in private
residences.'' The preamble stated that the approach for
commercial facilities would be the same as that for places of
public accommodation, i.e., those portions used exclusively as a
commercial facility or used as both a commercial facility and
for residential purposes would be covered. Because commercial
facilities are only subject to new construction and alterations
requirements, however, the covered portions would only be
subject to subpart D. This approach is reflected in
Sec.36.401(b)(1).
The Department is aware that the statutory definition of
"commercial facility'' excludes private residences because they
are "expressly exempted from coverage under the Fair Housing Act
of 1968, as amended.'' However, the Department interprets that
exemption as applying only to facilities that are exclusively
residential. When a facility is used as both a residence and a
commercial facility, the exemption does not apply.
Paragraph (b)(2) is similar to the new paragraph (b) under
Sec.36.207, "Places of public accommodation located in private
residences.'' The paragraph clarifies that the covered portion
includes not only the space used as a commercial facility, but
also the elements used to enter the commercial facility, e.g.,
the homeowner's front sidewalk, if any; the doorway; the
hallways; the restroom, if used by employees or visitors of the
commercial facility; and any other portion of the residence,
interior or exterior, used by employees or visitors of the
commercial facility.
As in the case of public accommodations located in private
residences, the new construction standards only apply to the
extent that a portion of the residence is designed or intended
for use as a commercial facility. Likewise, if a homeowner
alters a portion of his home to convert it to a commercial
facility, that work must be done in compliance with the
alterations standards in appendix A.
Structural Impracticability
Proposed Sec.36.401(c) is included in the final rule with minor
changes. It details a statutory exception to the new
construction requirement: the requirement that new construction
be accessible does not apply where an entity can demonstrate
that it is structurally impracticable to meet the requirements
of the regulation. This provision is also included in ADAAG, at
section 4.1.1(5)(a).
Consistent with the legislative history of the ADA, this narrow
exception will apply only in rare and unusual circumstances
where unique characteristics of terrain make accessibility
unusually difficult. Such limitations for topographical problems
are analogous to an acknowledged limitation in the application
of the accessibility requirements of the Fair Housing Amendments
Act (FHAA) of 1988.
Almost all commenters supported this interpretation. Two
commenters argued that the DOJ requirement is too limiting and
would not exempt some buildings that should be exempted because
of soil conditions, terrain, and other unusual site conditions.
These commenters suggested consistency with HUD's Fair Housing
Accessibility Guidelines (56 FR 9472 (1991)), which generally
would allow exceptions from accessibility requirements, or allow
compliance with less stringent requirements, on sites with
slopes exceeding 10%.
The Department is aware of the provisions in HUD's guidelines,
which were issued on March 6, 1991, after passage of the ADA and
publication of the Department's proposed rule. The approach
taken in these guidelines, which apply to different types of
construction and implement different statutory requirements for
new construction, does not bind this Department in regulating
under the ADA. The Department has included in the final rule the
substance of the proposed provision, which is faithful to the
intent of the statute, as expressed in the legislative history.
(See Senate report at 70 - 71; Education and Labor report at
120.)
The limited structural impracticability exception means that it
is acceptable to deviate from accessibility requirements only
where unique characteristics of terrain prevent the
incorporation of accessibility features and where providing
accessibility would destroy the physical integrity of a
facility. A situation in which a building must be built on
stilts because of its location in marshlands or over water is an
example of one of the few situations in which the exception for
structural impracticability would apply.
This exception to accessibility requirements should not be
applied to situations in which a facility is located in "hilly''
terrain or on a plot of land upon which there are steep grades.
In such circumstances, accessibility can be achieved without
destroying the physical integrity of a structure, and is
required in the construction of new facilities.
Some commenters asked for clarification concerning when and how
to apply the ADA rules or the Fair Housing Accessibility
Guidelines, especially when a facility may be subject to both
because of mixed use. Guidance on this question is provided in
the discussion of the definitions of place of public
accommodation and commercial facility. With respect to the
structural impracticability exception, a mixed-use facility
could not take advantage of the Fair Housing exemption, to the
extent that it is less stringent than the ADA exemption, except
for those portions of the facility that are subject only to the
Fair Housing Act.
As explained in the preamble to the proposed rule, in those rare
circumstances in which it is structurally impracticable to
achieve full compliance with accessibility retirements under the
ADA, places of public accommodation and commercial facilities
should still be designed and constructed to incorporate
accessibility features to the extent that the features are
structurally practicable. The accessibility requirements should
not be viewed as an all-or-nothing proposition in such
circumstances.
If it is structurally impracticable for a facility in its
entirety to be readily accessible to and usable by people with
disabilities, then those portions that can be made accessible
should be made accessible. If a building cannot be constructed
in compliance with the full range of accessibility requirements
because of structural impracticability, then it should still
incorporate those features that are structurally practicable. If
it is structurally impracticable to make a particular facility
accessible to persons who have particular types of disabilities,
it is still appropriate to require it to be made accessible to
persons with other types of disabilities. For example, a
facility that is of necessity built on stilts and cannot be made
accessible to persons who use wheelchairs because it is
structurally impracticable to do so, must be made accessible for
individuals with vision or hearing impairments or other kinds of
disabilities.
Elevator Exemption
Section 36.401(d) implements the "elevator exemption'' for new
construction in section 303(b) of the ADA. The elevator
exemption is an exception to the general requirement that new
facilities be readily accessible to and usable by individuals
with disabilities. Generally, an elevator is the most common way
to provide individuals who use wheelchairs "ready access'' to
floor levels above or below the ground floor of a multi-story
building. Congress, however, chose not to require elevators in
new small buildings, that is, those with less than three stories
or less than 3,000 square feet per story. In buildings eligible
for the exemption, therefore, "ready access'' from the building
entrance to a floor above or below the ground floor is not
required, because the statute does not require that an elevator
be installed in such buildings. The elevator exemption does not
apply, however, to a facility housing a shopping center, a
shopping mall, or the professional office of a health care
provider, or other categories of facilities as determined by the
Attorney General. For example, a new office building that will
have only two stories, with no elevator planned, will not be
required to have an elevator, even if each story has 20,000
square feet. In other words, having either less than 3000 square
feet per story or less than three stories qualifies a facility
for the exemption; it need not qualify for the exemption on both
counts. Similarly, a facility that has five stories of 2800
square feet each qualifies for the exemption. If a facility has
three or more stories at any point, it is not eligible for the
elevator exemption unless all the stories are less than 3000
square feet.
The terms "shopping center or shopping mall'' and "professional
office of a health care provider'' are defined in this section.
They are substantively identical to the definitions included in
the proposed rule in Sec.36.104, "Definitions.'' They have been
moved to this section because, as commenters pointed out, they
are relevant only for the purposes of the elevator exemption,
and inclusion in the general definitions section could give the
incorrect impression that an office of a health care provider is
not covered as a place of public accommodation under other
sections of the rule, unless the office falls within the
definition.
For purposes of Sec.36.401, a "shopping center or shopping
mall'' is (1) a building housing five or more sales or rental
establishments, or (2) a series of buildings on a common site,
either under common ownership or common control or developed
either as one project or as a series of related projects,
housing five or more sales or rental establishments. The term
"shopping center or shopping mall'' only includes floor levels
containing at least one sales or rental establishment, or any
floor level that was designed or intended for use by at least
one sales or rental establishment.
Any sales or rental establishment of the type that is included
in paragraph (5) of the definition of "place of public
accommodation'' (for example, a bakery, grocery store, clothing
store, or hardware store) is considered a sales or rental
establishment for purposes of this definition; the other types
of public accommodations (e.g., restaurants, laundromats, banks,
travel services, health spas) are not.
In the preamble to the proposed rule, the Department sought
comment on whether the definition of "shopping center or mall''
should be expanded to include any of these other types of public
accommodations. The Department also sought comment on whether a
series of buildings should fall within the definition only if
they are physically connected.
Most of those responding to the first question (overwhelmingly
groups representing people with disabilities, or individual
commenters) urged that the definition encompass more places of
public accommodation, such as restaurants, motion picture
houses, laundromats, dry cleaners, and banks. They pointed out
that often it is not known what types of establishments will be
tenants in a new facility. In addition, they noted that malls
are advertised as entities, that their appeal is in the
"package'' of services offered to the public, and that this
package often includes the additional types of establishments
mentioned.
Commenters representing business groups sought to exempt banks,
travel services, grocery stores, drug stores, and freestanding
retail stores from the elevator requirement. They based this
request on the desire to continue the practice in some locations
of incorporating mezzanines housing administrative offices,
raised pharmacist areas, and raised areas in the front of
supermarkets that house safes and are used by managers to
oversee operations of check-out aisles and other functions. Many
of these concerns are adequately addressed by ADAAG. Apart from
those addressed by ADAAG, the Department sees no reason to treat
a particular type of sales or rental establishment differently
from any other. Although banks and travel services are not
included as "sales or rental establishments,'' because they do
not fall under paragraph (5) of the definition of place of
public accommodation, grocery stores and drug stores are
included.
The Department has declined to include places of public
accommodation other than sales or rental establishments in the
definition. The statutory definition of "public accommodation''
(section 301(7)) lists 12 types of establishments that are
considered public accommodations. Category (E) includes "a
bakery, grocery store, clothing store, hardware store, shopping
center, or other sales or rental establishment.'' This
arrangement suggests that it is only these types of
establishments that would make up a shopping center for purposes
of the statute. To include all types of places of public
accommodation, or those from 6 or 7 of the categories, as
commenters suggest, would overly limit the elevator exemption;
the universe of facilities covered by the definition of
"shopping center'' could well exceed the number of multitenant
facilities not covered, which would render the exemption almost
meaningless.
For similar reasons, the Department is retaining the requirement
that a building or series of buildings must house five or more
sales or rental establishments before it falls within the
definition of "shopping center.'' Numerous commenters objected
to the number and requested that the number be lowered from five
to three or four. Lowering the number in this manner would
include an inordinately large number of two-story multitenant
buildings within the category of those required to have
elevators.
The responses to the question concerning whether a series of
buildings should be connected in order to be covered were
varied. Generally, disability rights groups and some government
agencies said a series of buildings should not have to be
connected, and pointed to a trend in some areas to build
shopping centers in a garden or village setting. The Department
agrees that this design choice should not negate the elevator
requirement for new construction. Some business groups answered
the question in the affirmative, and some suggested a different
definition of shopping center. For example, one commenter
recommended the addition of a requirement that the five or more
establishments be physically connected on the non-ground floors
by a common pedestrian walkway or pathway, because otherwise a
series of stand-alone facilities would have to comply with the
elevator requirement, which would be unduly burdensome and
perhaps infeasible. Another suggested use of what it
characterized as the standard industry definition: "A group of
retail stores and related business facilities, the whole
planned, developed, operated and managed as a unit.'' While the
rule's definition would reach a series of related projects that
are under common control but were not developed as a single
project, the Department considers such a facility to be a
shopping center within the meaning of the statute. However, in
light of the hardship that could confront a series of existing
small stand-alone buildings if elevators were required in
alterations, the Department has included a common access route
in the definition of shopping center or shopping mall for
purposes of Sec.36.404.
Some commenters suggested that access to restrooms and other
shared facilities open to the public should be required even if
those facilities were not on a shopping floor. Such a provision
with respect to toilet or bathing facilities is included in the
elevator exception in final ADAAG 4.1.3(5).
For purposes of this subpart, the rule does not distinguish
between a "shopping mall'' (usually a building with a
roofed-over common pedestrian area serving more than one tenant
in which a majority of the tenants have a main entrance from the
common pedestrian area) and a "shopping center'' (e.g., a
"shopping strip''). Any facility housing five or more of the
types of sales or rental establishments described, regardless of
the number of other types of places of public accommodation
housed there (e.g., offices, movie theatres, restaurants), is a
shopping center or shopping mall.
For example, a two-story facility built for mixed-use occupancy
on both floors (e.g., by sales and rental establishments, a
movie theater, restaurants, and general office space) is a
shopping center or shopping mall if it houses five or more sales
or rental establishments. If none of these establishments is
located on the second floor, then only the ground floor, which
contains the sales or rental establishments, would be a
"shopping center or shopping mall,'' unless the second floor was
designed or intended for use by at least one sales or rental
establishment. In determining whether a floor was intended for
such use, factors to be considered include the types of
establishments that first occupied the floor, the nature of the
developer's marketing strategy, i.e., what types of
establishments were sought, and inclusion of any design features
particular to rental and sales establishments.
A "professional office of a health care provider'' is defined as
a location where a person or entity regulated by a State to
provide professional services related to the physical or mental
health of an individual makes such services available to the
public. In a two-story development that houses health care
providers only on the ground floor, the "professional office of
a health care provider'' is limited to the ground floor unless
the second floor was designed or intended for use by a health
care provider. In determining if a floor was intended for such
use, factors to be considered include whether the facility was
constructed with special plumbing, electrical, or other features
needed by health care providers, whether the developer marketed
the facility as a medical office center, and whether any of the
establishments that first occupied the floor was, in fact, a
health care provider.
In addition to requiring that a building that is a shopping
center, shopping mall, or the professional office of a health
care provider have an elevator regardless of square footage or
number of floors, the ADA (section 303(b)) provides that the
Attorney General may determine that a particular category of
facilities requires the installation of elevators based on the
usage of the facilities. The Department, as it proposed to do,
has added to the nonexempt categories terminals, depots, or
other stations used for specified public transportation, and
airport passenger terminals. Numerous commenters in all
categories endorsed this proposal; none opposed it. It is not
uncommon for an airport passenger terminal or train station, for
example, to have only two floors, with gates on both floors.
Because of the significance of transportation, because a person
with disabilities could be arriving or departing at any gate,
and because inaccessible facilities could result in a total
denial of transportation services, it is reasonable to require
that newly constructed transit facilities be accessible,
regardless of square footage or number of floors. One comment
suggested an amendment that would treat terminals and stations
similarly to shopping centers, by requiring an accessible route
only to those areas used for passenger loading and unloading and
for other passenger services. Paragraph (d)(2)(ii) has been
modified accordingly.
Some commenters suggested that other types of facilities (e.g.,
educational facilities, libraries, museums, commercial
facilities, and social service facilities) should be included in
the category of nonexempt facilities. The Department has not
found adequate justification for including any other types of
facilities in the nonexempt category at this time.
Section 36.401(d)(2) establishes the operative requirements
concerning the elevator exemption and its application to
shopping centers and malls, professional offices of health care
providers, transit stations, and airport passenger terminals.
Under the rule's framework, it is necessary first to determine
if a new facility (including one or more buildings) houses
places of public accommodation or commercial facilities that are
in the categories for which elevators are required. If so, and
the facility is a shopping center or shopping mall, or a
professional office of a health care provider, then any area
housing such an office or a sales or rental establishment or the
professional office of a health care provider is not entitled to
the elevator exemption.
The following examples illustrate the application of these
principles:
1. A shopping mall has an upper and a lower level. There are two
"anchor stores'' (in this case, major department stores at
either end of the mall, both with exterior entrances and an
entrance on each level from the common area). In addition, there
are 30 stores (sales or rental establishments) on the upper
level, all of which have entrances from a common central area.
There are 30 stores on the lower level, all of which have
entrances from a common central area. According to the rule,
elevator access must be provided to each store and to each level
of the anchor stores. This requirement could be satisfied with
respect to the 60 stores through elevators connecting the two
pedestrian levels, provided that an individual could travel from
the elevator to any other point on that level (i.e., into any
store through a common pedestrian area) on an accessible path.
2. A commercial (nonresidential) "townhouse'' development is
composed of 20 two-story attached buildings. The facility is
developed as one project, with common ownership, and the space
will be leased to retailers. Each building has one accessible
entrance from a pedestrian walk to the first floor. From that
point, one can enter a store on the first floor, or walk up a
flight of stairs to a store on the second floor. All 40 stores
must be accessible at ground floor level or by accessible
vertical access from that level. This does not mean, however,
that 20 elevators must be installed. Access could be provided to
the second floor by an elevator from the pedestrian area on the
lower level to an upper walkway connecting all the areas on the
second floor.
3. In the same type of development, it is planned that retail
stores will be housed exclusively on the ground floor, with only
office space (not professional offices of health care providers)
on the second. Elevator access need not be provided to the
second floor because all the sales or rental establishments (the
entities that make the facility a shopping center) are located
on an accessible ground floor.
4. In the same type of development, the space is designed and
marketed as medical or office suites, or as a medical office
facility. Accessible vertical access must be provided to all
areas, as described in example 2.
Some commenters suggested that building owners who knowingly
lease or rent space to nonexempt places of public accommodation
would violate Sec.36.401. However, the Department does not
consider leasing or renting inaccessible space in itself to
constitute a violation of this part. Nor does a change in use of
a facility, with no accompanying alterations (e.g., if a
psychiatrist replaces an attorney as a tenant in a second-floor
office, but no alterations are made to the office) trigger
accessibility requirements.
Entities cannot evade the requirements of this section by
constructing facilities in such a way that no story is intended
to constitute a "ground floor.'' For example, if a private
entity constructs a building whose main entrance leads only to
stairways or escalators that connect with upper or lower floors,
the Department would consider at least one level of the facility
a ground story.
The rule requires in Sec.36.401(d)(3), consistent with the
proposed rule, that, even if a building falls within the
elevator exemption, the floor or floors other than the ground
floor must nonetheless be accessible, except for elevator
access, to individuals with disabilities, including people who
use wheelchairs. This requirement applies to buildings that do
not house sales or rental establishments or the professional
offices of a health care provider as well as to those in which
such establishments or offices are all located on the ground
floor. In such a situation, little added cost is entailed in
making the second floor accessible, because it is similar in
structure and floor plan to the ground floor.
There are several reasons for this provision. First, some
individuals who are mobility impaired may work on a building's
second floor, which they can reach by stairs and the use of
crutches; however, the same individuals, once they reach the
second floor, may then use a wheelchair that is kept in the
office. Secondly, because the first floor will be accessible,
there will be little additional cost entailed in making the
second floor, with the same structure and generally the same
floor plan, accessible. In addition, the second floor must be
accessible to those persons with disabilities who do not need
elevators for level changes (for example, persons with sight or
hearing impairments and those with certain mobility
impairments). Finally, if an elevator is installed in the future
for any reason, full access to the floor will be facilitated.
One commenter asserted that this provision goes beyond the
Department's authority under the Act, and disagreed with the
Department's claim that little additional cost would be entailed
in compliance. However, the provision is taken directly from the
legislative history (see Education and Labor report at 114).
One commenter said that where an elevator is not required,
platform lifts should be required. Two commenters pointed out
that the elevator exemption is really an exemption from the
requirement for providing an accessible route to a second floor
not served by an elevator. The Department agrees with the latter
comment. Lifts to provide access between floors are not required
in buildings that are not required to have elevators. This point
is specifically addressed in the appendix to ADAAG
(Sec.4.1.3(5)). ADAAG also addresses in detail the situations in
which lifts are permitted or required.
Section 36.402 Alterations
Sections 36.402 - 36.405 implement section 303(a)(2) of the Act,
which requires that alterations to existing facilities be made
in a way that ensures that the altered portion is readily
accessible to and usable by individuals with disabilities. This
part does not require alterations; it simply provides that when
alterations are undertaken, they must be made in a manner that
provides access.
Section 36.402(a)(1) provides that 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.
The proposed rule provided that an alteration would be deemed to
be undertaken after January 26, 1992, if the physical alteration
of the property is in progress after that date. Commenters
pointed out that this provision would, in some cases, produce an
unjust result by requiring the redesign or retrofitting of
projects initiated before this part established the ADA
accessibility standards. The Department agrees that the proposed
rule would, in some instances, unfairly penalize projects that
were substantially completed before the effective date.
Therefore, paragraph (a)(2) has been revised to specify that an
alteration will be deemed to be undertaken after January 26,
1992, if the physical alteration of the property begins after
that date. As a matter of interpretation, the Department will
construe this provision to apply to alterations that require a
permit from a State, County or local government, if physical
alterations pursuant to the terms of the permit begin after
January 26, 1992. The Department recognizes that this
application of the effective date may require redesign of some
facilities that were planned prior to the publication of this
part, but no retrofitting will be required of facilities on
which the physical alterations were initiated prior to the
effective date of the Act. Of course, nothing in this section in
any way alters the obligation of any facility to remove
architectural barriers in existing facilities to the extent that
such barrier removal is readily achievable.
Paragraph (b) provides that, for the purposes of this part, an
"alteration'' is a change to a place of public accommodation or
a commercial facility that affects or could affect the usability
of the building or facility or any part thereof. One commenter
suggested that the concept of usability should apply only to
those changes that affect access by persons with disabilities.
The Department remains convinced that the Act requires the
concept of "usability'' to be read broadly to include any change
that affects the usability of the facility, not simply changes
that relate directly to access by individuals with disabilities.
The Department received a significant number of comments on the
examples provided in paragraphs (b)(1) and (b)(2) of the
proposed rule. Some commenters urged the Department to limit the
application of this provision to major structural modifications,
while others asserted that it should be expanded to include
cosmetic changes such as painting and wallpapering. The
Department believes that neither approach is consistent with the
legislative history, which requires this Department's regulation
to be consistent with the accessibility guidelines (ADAAG)
developed by the Architectural and Transportation Barriers
Compliance Board (ATBCB). Although the legislative history
contemplates that, in some instances, the ADA accessibility
standards will exceed the current MGRAD requirements, it also
clearly indicates the view of the drafters that "minor changes
such as painting or papering walls * * * do not affect
usability'' (Education and Labor report at 111, Judiciary report
at 64), and, therefore, are not alterations. The proposed rule
was based on the existing MGRAD definition of "alteration.'' The
language of the final rule has been revised to be consistent
with ADAAG, incorporated as appendix A to this part.
Some commenters sought clarification of the intended scope of
this section. The proposed rule contained illustrations of
changes that affect usability and those that do not. The intent
of the illustrations was to explain the scope of the alterations
requirement; the effect was to obscure it. As a result of the
illustrations, some commenters concluded that any alteration to
a facility, even a minor alteration such as relocating an
electrical outlet, would trigger an extensive obligation to
provide access throughout an entire facility. That result was
never contemplated.
Therefore, in this final rule paragraph (b)(1) has been revised
to include the major provisions of paragraphs (b)(1) and (b)(2)
of the proposed rule. The examples in the proposed rule have
been deleted. Paragraph (b)(1) now provides that alterations
include, but are not limited to, remodeling, renovation,
rehabilitation, reconstruction, historic restoration, changes or
rearrangement in structural parts or elements, and changes or
rearrangement in the plan configuration of walls and full-height
partitions. Normal maintenance, reroofing, painting or
wallpapering, asbestos removal, or changes to mechanical and
electrical systems are not alterations unless they affect the
usability of building or facility.
Paragraph (b)(2) of this final rule was added to clarify the
scope of the alterations requirement. Paragraph (b)(2) provides
that if existing elements, spaces, or common areas are altered,
then each such altered element, space, or area shall comply with
the applicable provisions of appendix A (ADAAG). As provided in
Sec.36.403, if an altered space or area is an area of the
facility that contains a primary function, then the requirements
of that section apply.
Therefore, when an entity undertakes a minor alteration to a
place of public accommodation or commercial facility, such as
moving an electrical outlet, the new outlet must be installed in
compliance with ADAAG. (Alteration of the elements listed in
Sec.36.403(c)(2) cannot trigger a path of travel obligation.) If
the alteration is to an area, such as an employee lounge or
locker room, that is not an area of the facility that contains a
primary function, that area must comply with ADAAG. It is only
when an alteration affects access to or usability of an area
containing a primary function, as opposed to other areas or the
elements listed in Sec.36.403(c)(2), that the path of travel to
the altered area must be made accessible.
The Department received relatively few comments on paragraph
(c), which explains the statutory phrase "to the maximum extent
feasible.'' Some commenters suggested that the regulation should
specify that cost is a factor in determining whether it is
feasible to make an altered area accessible. The legislative
history of the ADA indicates that the concept of feasibility
only reaches the question of whether it is possible to make the
alteration accessible in compliance with this part. Costs are to
be considered only when an alteration to an area containing a
primary function triggers an additional requirement to make the
path of travel to the altered area accessible.
Section 36.402(c) is, therefore, essentially unchanged from the
proposed rule. At the recommendation of a commenter, the
Department has inserted the word "virtually'' to modify
"impossible'' to conform to the language of the legislative
history. It explains that the phrase "to the maximum extent
feasible'' as used in this section applies to the occasional
case where the nature of an existing facility makes it virtually
impossible to comply fully with applicable accessibility
standards through a planned alteration. In the occasional cases
in which full compliance is impossible, alterations shall
provide the maximum physical accessibility feasible. Any
features of the facility that are being altered shall be made
accessible unless it is technically infeasible to do so. If
providing accessibility in conformance with this section to
individuals with certain disabilities (e.g., those who use
wheelchairs) would not be feasible, the facility shall be made
accessible to persons with other types of disabilities (e.g.,
those who use crutches or who have impaired vision or hearing,
or those who have other types of impairments).
Section 36.403 Alterations: Path of Travel
Section 36.403 implements the statutory requirement that any
alteration that affects or could affect the usability of or
access to an area of a facility that contains a primary function
shall be made so as to ensure that, to the maximum extent
feasible, the path of travel to the altered area, and the
restrooms, telephones, and drinking fountains serving the
altered area, are readily accessible to and usable by
individuals with disabilities, including individuals who use
wheelchairs, unless the cost and scope of such alterations is
disproportionate to the cost of the overall alteration.
Paragraph (a) restates this statutory requirement.
Paragraph (b) defines a "primary function'' as a major activity
for which the facility is intended. This paragraph is unchanged
from the proposed rule. Areas that contain a primary function
include, but are not limited to, the customer services lobby of
a bank, the dining area of a cafeteria, the meeting rooms in a
conference center, as well as offices and all other work areas
in which the activities of the public accommodation or other
private entities using the facility are carried out. The concept
of "areas containing a primary function'' is analogous to the
concept of "functional spaces'' in Sec.3.5 of the existing
Uniform Federal Accessibility Standards, which defines
"functional spaces'' as "[t]he rooms and spaces in a building or
facility that house the major activities for which the building
or facility is intended.''
Paragraph (b) provides that areas such as mechanical rooms,
boiler rooms, supply storage rooms, employee lounges and locker
rooms, janitorial closets, entrances, corridors, and restrooms
are not areas containing a primary function. There may be
exceptions to this general rule. For example, the availability
of public restrooms at a place of public accommodation at a
roadside rest stop may be a major factor affecting customers'
decisions to patronize the public accommodation. In that case, a
restroom would be considered to be an "area containing a primary
function'' of the facility.
Most of the commenters who addressed this issue supported the
approach taken by the Department; but a few commenters suggested
that areas not open to the general public or those used
exclusively by employees should be excluded from the definition
of primary function. The preamble to the proposed rule noted
that the Department considered an alternative approach to the
definition of "primary function,'' under which a primary
function of a commercial facility would be defined as a major
activity for which the facility was intended, while a primary
function of a place of public accommodation would be defined as
an activity which involves providing significant goods,
services, facilities, privileges, advantages, or accommodations.
However, the Department concluded that, although portions of the
legislative history of the ADA support this alternative, the
better view is that the language now contained in Sec.36.403(b)
most accurately reflects congressional intent. No commenter made
a persuasive argument that the Department's interpretation of
the legislative history is incorrect.
When the ADA was introduced, the requirement to make alterations
accessible was included in section 302 of the Act, which
identifies the practices that constitute discrimination by a
public accommodation. Because section 302 applies only to the
operation of a place of public accommodation, the alterations
requirement was intended only to provide access to clients and
customers of a public accommodation. It was anticipated that
access would be provided to employees with disabilities under
the "reasonable accommodation'' requirements of title I.
However, during its consideration of the ADA, the House
Judiciary Committee amended the bill to move the alterations
provision from section 302 to section 303, which applies to
commercial facilities as well as public accommodations. The
Committee report accompanying the bill explains that:
New construction and alterations of both public accommodations
and commercial facilities must be made readily accessible to and
usable by individuals with disabilities * * *. Essentially,
[this requirement] is designed to ensure that patrons and
employees of public accommodations and commercial facilities are
able to get to, enter and use the facility * * *. The rationale
for making new construction accessible applies with equal force
to alterations.
Judiciary report at 62 - 63 (emphasis added).
The ADA, as enacted, contains the language of section 303 as it
was reported out of the Judiciary Committee. Therefore, the
Department has concluded that the concept of "primary function''
should be applied in the same manner to places of public
accommodation and to commercial facilities, thereby including
employee work areas in places of public accommodation within the
scope of this section.
Paragraph (c) provides examples of alterations that affect the
usability of or access to an area containing a primary function.
The examples include: Remodeling a merchandise display area or
employee work areas in a department store; installing a new
floor surface to replace an inaccessible surface in the customer
service area or employee work areas of a bank; redesigning the
assembly line area of a factory; and installing a computer
center in an accounting firm. This list is illustrative, not
exhaustive. Any change that affects the usability of or access
to an area containing a primary function triggers the statutory
obligation to make the path of travel to the altered area
accessible.
When the proposed rule was drafted, the Department believed that
the rule made it clear that the ADA would require alterations to
the path of travel only when such alterations are not
disproportionate to the alteration to the primary function area.
However, the comments that the Department received indicated
that many commenters believe that even minor alterations to
individual elements would require additional alterations to the
path of travel. To address the concern of these commenters, a
new paragraph (c)(2) has been added to the final rule to provide
that alterations to such elements as windows, hardware, controls
(e.g. light switches or thermostats), electrical outlets, or
signage will not be deemed to be alterations that affect the
usability of or access to an area containing a primary function.
Of course, each element that is altered must comply with ADAAG
(appendix A) . The cost of alterations to individual elements
would be included in the overall cost of an alteration for
purposes of determining disproportionality and would be counted
when determining the aggregate cost of a series of small
alterations in accordance with Sec.36.401(h) if the area is
altered in a manner that affects access to or usability of an
area containing a primary function.
Paragraph (d) concerns the respective obligations of landlords
and tenants in the cases of alterations that trigger the path of
travel requirement under Sec.36.403. This paragraph was
contained in the landlord/tenant section of the proposed rule,
Sec.36.201(b). If a tenant is making alterations upon its
premises pursuant to terms of a lease that grant it the
authority to do so (even if they constitute alterations that
trigger the path of travel requirement), and the landlord is not
making alterations to other parts of the facility, then the
alterations by the tenant on its own premises do not trigger a
path of travel obligation upon the landlord in areas of the
facility under the landlord's authority that are not otherwise
being altered. The legislative history makes clear that the path
of travel requirement applies only to the entity that is already
making the alteration, and thus the Department has not changed
the final rule despite numerous comments suggesting that the
tenant be required to provide a path of travel.
Paragraph (e) defines a "path of travel'' as a continuous,
unobstructed way of pedestrian passage by means of which an
altered area may be approached, entered, and exited; and which
connects the altered area with an exterior approach (including
sidewalks, streets, and parking areas), an entrance to the
facility, and other parts of the facility. This concept of an
accessible path of travel is analogous to the concepts of
"accessible route'' and "circulation path'' contained in section
3.5 of the current UFAS. Some commenters suggested that this
paragraph should address emergency egress. The Department
disagrees. "Path of travel'' as it is used in this section is a
term of art under the ADA that relates only to the obligation of
the public accommodation or commercial facility to provide
additional accessible elements when an area containing a primary
function is altered. The Department recognizes that emergency
egress is an important issue, but believes that it is
appropriately addressed in ADAAG (appendix A), not in this
paragraph. Furthermore, ADAAG does not require changes to
emergency egress areas in alterations.
Paragraph (e)(2) is drawn from section 3.5 of UFAS. It provides
that an accessible path of travel may consist of walks and
sidewalks, curb ramps and other interior or exterior pedestrian
ramps; clear floor paths through lobbies, corridors, rooms, and
other improved areas; parking access aisles; elevators and
lifts; or a combination of such elements. Paragraph (e)(3)
provides that, for the purposes of this part, the term "path of
travel'' also includes the restrooms, telephones, and drinking
fountains serving an altered area.
Although the Act establishes an expectation that an accessible
path of travel should generally be included when alterations are
made to an area containing a primary function, Congress
recognized that, in some circumstances, providing an accessible
path of travel to an altered area may be sufficiently burdensome
in comparison to the alteration being undertaken to the area
containing a primary function as to render this requirement
unreasonable. Therefore, Congress provided, in section 303(a)(2)
of the Act, that alterations to the path of travel that are
disproportionate in cost and scope to the overall alteration are
not required.
The Act requires the Attorney General to determine at what point
the cost of providing an accessible path of travel becomes
disproportionate. The proposed rule provided three options for
making this determination.
Two committees of Congress specifically addressed this issue:
the House Committee on Education and Labor and the House
Committee on the Judiciary. The reports issued by each committee
suggested that accessibility alterations to a path of travel
might be "disproportionate'' if they exceed 30% of the
alteration costs (Education and Labor report at 113; Judiciary
report at 64). Because the Department believed that smaller
percentage rates might be appropriate, the proposed rule sought
comments on three options: 10%, 20%, or 30%.
The Department received a significant number of comments on this
section. Commenters representing individuals with disabilities
generally supported the use of 30% (or more); commenters
representing covered entities supported a figure of 10% (or
less). The Department believes that alterations made to provide
an accessible path of travel to the altered area should be
deemed disproportionate to the overall alteration when the cost
exceeds 20% of the cost of the alteration to the primary
function area. This approach appropriately reflects the intent
of Congress to provide access for individuals with disabilities
without causing economic hardship for the covered public
accommodations and commercial facilities.
The Department has determined that the basis for this cost
calculation shall be the cost of the alterations to the area
containing the primary function. This approach will enable the
public accommodation or other private entity that is making the
alteration to calculate its obligation as a percentage of a
clearly ascertainable base cost, rather than as a percentage of
the "total'' cost, an amount that will change as accessibility
alterations to the path of travel are made.
Paragraph (f)(2) (paragraph (e)(2) in the proposed rule) is
unchanged. It provides examples of costs that may be counted as
expenditures required to provide an accessible path of travel.
They include:
- Costs associated with providing an accessible entrance and an
accessible route to the altered area, for example, the cost of
widening doorways or installing ramps;
- Costs associated with making restrooms accessible, such as
installing grab bars, enlarging toilet stalls, insulating pipes,
or installing accessible faucet controls;
- Costs associated with providing accessible telephones, such as
relocating telephones to an accessible height, installing
amplification devices, or installing telecommunications devices
for deaf persons (TDD's);
- Costs associated with relocating an inaccessible drinking
fountain.
Paragraph (f)(1) of the proposed rule provided that when the
cost of alterations necessary to make the path of travel serving
an altered area fully accessible is disproportionate to the cost
of the overall alteration, the path of travel shall be made
accessible to the maximum extent feasible. In response to the
suggestion of a commenter, the Department has made an editorial
change in the final rule (paragraph (g)(1)) to clarify that if
the cost of providing a fully accessible path of travel is
disproportionate, the path of travel shall be made accessible
"to the extent that it can be made accessible without incurring
disproportionate costs.''
Paragraph (g)(2) (paragraph (f)(2) in the NPRM) establishes that
priority should be given to those elements that will provide the
greatest access, in the following order: An accessible entrance;
an accessible route to the altered area; at least one accessible
restroom for each sex or a single unisex restroom; accessible
telephones; accessible drinking fountains; and, whenever
possible, additional accessible elements such as parking,
storage, and alarms. This paragraph is unchanged from the
proposed rule.
Paragraph (h) (paragraph (g) in the proposed rule) provides that
the obligation to provide an accessible path of travel may not
be evaded by performing a series of small alterations to the
area served by a single path of travel if those alterations
could have been performed as a single undertaking. If an area
containing a primary function has been altered without providing
an accessible path of travel to serve that area, and subsequent
alterations of that area, or a different area on the same path
of travel, are undertaken within three years of the original
alteration, the total cost of alterations to primary function
areas on that path of travel during the preceding three year
period shall be considered in determining whether the cost of
making the path of travel serving that area accessible is
disproportionate. Only alterations undertaken after January 26,
1992, shall be considered in determining if the cost of
providing accessible features is disproportionate to the overall
cost of the alterations.
Section 36.404 Alterations: Elevator Exemption
Section 36.404 implements the elevator exemption in section
303(b) of the Act as it applies to altered facilities. The
provisions of section 303(b) are discussed in the preamble to
Sec.36.401(d) above. The statute applies the same exemption to
both new construction and alterations. The principal difference
between the requirements of Sec.36.401(d) and Sec.36.404 is
that, in altering an existing facility that is not eligible for
the statutory exemption, the public accommodation or other
private entity responsible for the alteration is not required to
install an elevator if the installation of an elevator would be
disproportionate in cost and scope to the cost of the overall
alteration as provided in Sec.36.403(f)(1). In addition, the
standards referenced in Sec.36.406 (ADAAG) provide that
installation of an elevator in an altered facility is not
required if it is "technically infeasible.''
This section has been revised to define the terms "professional
office of a health care provider'' and "shopping center or
shopping mall'' for the purposes of this section. The definition
of "professional office of a health care provider'' is identical
to the definition included in Sec.36.401(d).
It has been brought to the attention of the Department that
there is some misunderstanding about the scope of the elevator
exemption as it applies to the professional office of a health
care provider. A public accommodation, such as the professional
office of a health care provider, is required to remove
architectural barriers to its facility to the extent that such
barrier removal is readily achievable (see Sec.36.304), but it
is not otherwise required by this part to undertake new
construction or alterations. This part does not require that an
existing two story building that houses the professional office
of a health care provider be altered for the purpose of
providing elevator access. If, however, alterations to the area
housing the office of the health care provider are undertaken
for other purposes, the installation of an elevator might be
required, but only if the cost of the elevator is not
disproportionate to the cost of the overall alteration. Neither
the Act nor this part prohibits a health care provider from
locating his or her professional office in an existing facility
that does not have an elevator.
Because of the unique challenges presented in altering existing
facilities, the Department has adopted a definition of "shopping
center or shopping mall'' for the purposes of this section that
is slightly different from the definition adopted under
Sec.36.401(d). For the purposes of this section, a "shopping
center or shopping mall'' is (1) a building housing five or more
sales or rental establishments, or (2) a series of buildings on
a common site, connected by a common pedestrian access route
above or below the ground floor, either under common ownership
or common control or developed either as one project or as a
series of related projects, housing five or more sales or rental
establishments. As is the case with new construction, the term
"shopping center or shopping mall'' only includes floor levels
housing at least one sales or rental establishment, or any floor
level that was designed or intended for use by at least one
sales or rental establishment.
The Department believes that it is appropriate to use a
different definition of "shopping center or shopping mall'' for
this section than for Sec.36.401, in order to make it clear that
a series of existing buildings on a common site that is altered
for the use of sales or rental establishments does not become a
"shopping center or shopping mall'' required to install an
elevator, unless there is a common means of pedestrian access
above or below the ground floor. Without this exemption,
separate, but adjacent, buildings that were initially designed
and constructed independently of each other could be required to
be retrofitted with elevators, if they were later renovated for
a purpose not contemplated at the time of construction.
Like Sec.36.401(d), Sec.36.404 provides that the exemptions in
this paragraph do not obviate or limit in any way the obligation
to comply with the other accessibility requirements established
in this subpart. For example, alterations to floors above or
below the ground floor must be accessible regardless of whether
the altered facility has an elevator. If a facility that is not
required to install an elevator nonetheless has an elevator,
that elevator shall meet, to the maximum extent feasible, the
accessibility requirements of this section.
Section 36.405 Alterations: Historic Preservation
Section 36.405 gives effect to the intent of Congress, expressed
in section 504(c) of the Act, that this part recognize the
national interest in preserving significant historic structures.
Commenters criticized the Department's use of descriptive terms
in the proposed rule that are different from those used in the
ADA to describe eligible historic properties. In addition, some
commenters criticized the Department's decision to use the
concept of "substantially impairing'' the historic features of a
property, which is a concept employed in regulations
implementing section 504 of the Rehabilitation Act of 1973.
Those commenters recommended that the Department adopt the
criteria of "adverse effect'' published by the Advisory Council
on Historic Preservation under the National Historic
Preservation Act (36 CFR 800.9) as the standard for determining
whether an historic property may be altered.
The Department agrees with these comments to the extent that
they suggest that the language of the rule should conform to the
language employed by Congress in the ADA. Therefore, the
language of this section has been revised to make it clear that
this provision applies to buildings or facilities that are
eligible for listing in the National Register of Historic Places
under the National Historic Preservation Act (16 U.S.C. 470 et
seq.) and to buildings or facilities that are designated as
historic under State or local law. The Department believes,
however, that the criteria of adverse effect employed under the
National Historic Preservation Act are inappropriate for this
rule because section 504(c) of the ADA specifies that special
alterations provisions shall apply only when an alteration would
"threaten or destroy the historic significance of qualified
historic buildings and facilities.''
The Department intends that the exception created by this
section be applied only in those very rare situations in which
it is not possible to provide access to an historic property
using the special access provisions in ADAAG. Therefore,
paragraph (a) of Sec.36.405 has been revised to provide that
alterations to historic properties shall comply, to the maximum
extent feasible, with section 4.1.7 of ADAAG. Paragraph (b) of
this section has been revised to provide that if it has been
determined, under the procedures established in ADAAG, that it
is not feasible to provide physical access to an historic
property that is a place of public accommodation in a manner
that will not threaten or destroy the historic significance of
the property, alternative methods of access shall be provided
pursuant to the requirements of Subpart C.
Section 36.406 Standards for New Construction and Alterations
Section 36.406 implements the requirements of sections 306(b)
and 306(c) of the Act, which require the Attorney General to
promulgate standards for accessible design for buildings and
facilities subject to the Act and this part that are consistent
with the supplemental minimum guidelines and requirements for
accessible design published by the Architectural and
Transportation Barriers Compliance Board (ATBCB or Board)
pursuant to section 504 of the Act. This section of the rule
provides that new construction and alterations subject to this
part shall comply with the standards for accessible design
published as appendix A to this part.
Appendix A contains the Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities (ADAAG)
which is being published by the ATBCB as a final rule elsewhere
in this issue of the Federal Register. As proposed in this
Department's proposed rule, Sec.36.406(a) adopts ADAAG as the
accessibility standard applicable under this rule.
Paragraph (b) was not included in the proposed rule. It
provides, in chart form, guidance for using ADAAG together with
subparts A through D of this part when determining requirements
for a particular facility. This chart is intended solely as
guidance for the user; it has no effect for purposes of
compliance or enforcement. It does not necessarily provide
complete or mandatory information.
Proposed Sec.36.406(b) is not included in the final rule. That
provision, which would have taken effect only if the final rule
had followed the proposed Option Two for Sec.36.401(a), is
unnecessary because the Department has chosen Option One, as
explained in the preamble for that section.
Section 504(a) of the ADA requires the ATBCB to issue minimum
guidelines to supplement the existing Minimum Guidelines and
Requirements for Accessible Design (MGRAD) (36 CFR part 1190)
for purposes of title III. According to section 504(b) of the
Act, the guidelines are to establish additional requirements,
consistent with the Act, "to ensure that buildings and
facilities are accessible, in terms of architecture and design,
...and communication, to individuals with disabilities.''
Section 306(c) of the Act requires that the accessibility
standards included in the Department's regulations be consistent
with the minimum guidelines, in this case ADAAG.
As explained in the ATBCB's preamble to ADAAG, the substance and
form of the guidelines are drawn from several sources. They use
as their model the 1984 Uniform Federal Accessibility Standards
(UFAS) (41 CFR part 101, subpart 101 -19.6, appendix), which are
the standards implementing the Architectural Barriers Act. UFAS
is based on the Board's 1982 MGRAD. ADAAG follows the numbering
system and format of the private sector American National
Standard Institute's ANSI A117.1 standards. (American National
Specifications for Making Buildings and Facilities Accessible to
and Usable by Physically Handicapped People (ANSI A117 - 1980)
and American National Standard for Buildings and Facilities --
Providing Accessibility and Usability for Physically Handicapped
People (ANSI A117.1 - 1986).) ADAAG supplements MGRAD. In
developing ADAAG, the Board made every effort to be consistent
with MGRAD and the current and proposed ANSI Standards, to the
extent consistent with the ADA.
ADAAG consists of nine main sections and a separate appendix.
Sections 1 through 3 contain general provisions and definitions.
Section 4 contains scoping provisions and technical
specifications applicable to all covered buildings and
facilities. The scoping provisions are listed separately for new
construction of sites and exterior facilities; new construction
of buildings; additions; alterations; and alterations to
historic properties. The technical specifications generally
reprint the text and illustrations of the ANSI A117.1 standard,
except where differences are noted by italics. Sections 5
through 9 of the guidelines are special application sections and
contain additional requirements for restaurants and cafeterias,
medical care facilities, business and mercantile facilities,
libraries, and transient lodging. The appendix to the guidelines
contains additional information to aid in understanding the
technical specifications. The section numbers in the appendix
correspond to the sections of the guidelines to which they
relate. An asterisk after a section number indicates that
additional information appears in the appendix.
ADAAG's provisions are further explained under Summary of ADAAG
below.
General Comments
One commenter urged the Department to move all or portions of
subpart D, New Construction and Alterations, to the appendix
(ADAAG) or to duplicate portions of subpart D in the appendix.
The commenter correctly pointed out that subpart D is inherently
linked to ADAAG, and that a self-contained set of rules would be
helpful to users. The Department has attempted to simplify use
of the two documents by deleting some paragraphs from subpart D
(e.g., those relating to work areas), because they are included
in ADAAG. However, the Department has retained in subpart D
those sections that are taken directly from the statute or that
give meaning to specific statutory concepts (e.g., structural
impracticability, path of travel). While some of the subpart D
provisions are duplicated in ADAAG, others are not. For example,
issues relating to path of travel and disproportionality in
alterations are not addressed in detail in ADAAG. (The structure
and contents of the two documents are addressed below under
Summary of ADAAG.) While the Department agrees that it would be
useful to have one self-contained document, the different
focuses of this rule and ADAAG do not permit this result at this
time. However, the chart included in Sec.36.406(b) should assist
users in applying the provisions of subparts A through D, and
ADAAG together.
Numerous business groups have urged the Department not to adopt
the proposed ADAAG as the accessibility standards, because the
requirements established are too high, reflect the "state of the
art,'' and are inflexible, rigid, and impractical. Many of these
objections have been lodged on the basis that ADAAG exceeds the
statutory mandate to establish "minimum'' guidelines. In the
view of the Department, these commenters have misconstrued the
meaning of the term "minimum guidelines.'' The statute clearly
contemplates that the guidelines establish a level of access --
a minimum -- that the standards must meet or exceed. The
guidelines are not to be "minimal'' in the sense that they would
provide for a low level of access. To the contrary, Congress
emphasized that the ADA requires a "high degree of convenient
access.'' Education and Labor report at 117 - 18. The
legislative history explains that the guidelines may not
"reduce, weaken, narrow or set less accessibility standards than
those included in existing MGRAD'' and should provide greater
guidance in communication accessibility for individuals with
hearing and vision impairments. Id. at 139. Nor did Congress
contemplate a set of guidelines less detailed than ADAAG; the
statute requires that the ADA guidelines supplement the existing
MGRAD. When it established the statutory scheme, Congress was
aware of the content and purpose of the 1982 MGRAD; as ADAAG
does with respect to ADA, MGRAD establishes a minimum level of
access that the Architectural Barriers Act standards (i.e.,
UFAS) must meet or exceed, and includes a high level of detail.
Many of the same commenters urged the Department to incorporate
as its accessibility standards the ANSI standard's technical
provisions and to adopt the proposed scoping provisions under
development by the Council of American Building Officials' Board
for the Coordination of Model Codes (BCMC). They contended that
the ANSI standard is familiar to and accepted by professionals,
and that both documents are developed through consensus. They
suggested that ADAAG will not stay current, because it does not
follow an established cyclical review process, and that it is
not likely to be adopted by nonfederal jurisdictions in State
and local codes. They urged the Department and the Board to
coordinate the ADAAG provisions and any substantive changes to
them with the ANSI A117 committee in order to maintain a
consistent and uniform set of accessibility standards that can
be efficiently and effectively implemented at the State and
local level through the existing building regulatory processes.
The Department shares the commenters' goal of coordination
between the private sector and Federal standards, to the extent
that coordination can lead to substantive requirements
consistent with the ADA. A single accessibility standard, or
consistent accessibility standards, that can be used for ADA
purposes and that can be incorporated or referenced by State and
local governments, would help to ensure that the ADA
requirements are routinely implemented at the design stage. The
Department plans to work toward this goal.
The Department, however, must comply with the requirements of
the ADA, the Federal Advisory Committee Act (5 U.S.C app. 1 et
seq.) and the Administrative Procedure Act (5 U.S.C 551 et
seq.). Neither the Department nor the Board can adopt private
requirements wholesale. Furthermore, neither the 1991 ANSI A117
Standard revision nor the BCMC process is complete. Although the
ANSI and BCMC provisions are not final, the Board has carefully
considered both the draft BCMC scoping provisions and draft ANSI
technical standards and included their language in ADAAG
wherever consistent with the ADA.
Some commenters requested that, if the Department did not adopt
ANSI by reference, the Department declare compliance with
ANSI/BCMC to constitute equivalency with the ADA standards. The
Department has not adopted this recommendation but has instead
worked as a member of the ATBCB to ensure that its accessibility
standards are practical and usable. In addition, as explained
under subpart F, Certification of State Laws or Local Building
Codes, the proper forum for further evaluation of this suggested
approach would be in conjunction with the certification process.
Some commenters urged the Department to allow an additional
comment period after the Board published its guidelines in final
form, for purposes of affording the public a further opportunity
to evaluate the appropriateness of including them as the
Departments accessibility standards. Such an additional comment
period is unnecessary and would unduly delay the issuance of
final regulations. The Department put the public on notice,
through the proposed rule, of its intention to adopt the
proposed ADAAG, with any changes made by the Board, as the
accessibility standards. As a member of the Board and of its ADA
Task Force, the Department participated actively in the public
hearings held on the proposed guidelines and in preparation of
both the proposed and final versions of ADAAG. Many individuals
and groups commented directly to the Department's docket, or at
its public hearings, about ADAAG. The comments received on
ADAAG, whether by the Board or by this Department, were
thoroughly analyzed and considered by the Department in the
context of whether the proposed ADAAG was consistent with the
ADA and suitable for adoption as both guidelines and standards.
The Department is convinced that ADAAG as adopted in its final
form is appropriate for these purposes. The final guidelines,
adopted here as standards, will ensure the high level of access
contemplated by Congress, consistent with the ADA's balance
between the interests of people with disabilities and the
business community.
A few commenters, citing the Senate report (at 70) and the
Education and Labor report (at 119), asked the Department to
include in the regulations a provision stating that departures
from particular technical and scoping requirements of the
accessibility standards will be permitted so long as the
alternative methods used will provide substantially equivalent
or greater access to and utilization of the facility. Such a
provision is found in ADAAG 2.2 and by virtue of that fact is
included in these regulations.
Comments on specific provisions of proposed ADAAG
During the course of accepting comments on its proposed rule,
the Department received numerous comments on ADAAG. Those areas
that elicited the heaviest response included assistive listening
systems, automated teller machines, work areas, parking, areas
of refuge, telephones (scoping for TDD's and volume controls)
and visual alarms. Strenuous objections were raised by some
business commenters to the proposed provisions of the guidelines
concerning check-out aisles, counters, and scoping for hotels
and nursing facilities. All these comments were considered in
the same manner as other comments on the Department's proposed
rule and, in the Department's view, have been addressed
adequately in the final ADAAG.
Largely in response to comments, the Board made numerous changes
from its proposal, including the following:
- Generally, at least 50% of public entrances to new buildings
must be accessible, rather than all entrances, as would often
have resulted from the proposed approach.
- Not all check-out aisles are required to be accessible.
- The final guidelines provide greater flexibility in providing
access to sales counters, and no longer require a portion of
every counter to be accessible.
- Scoping for TDD's or text telephones was increased. One TDD or
text telephone, for speech and hearing impaired persons, must be
provided at locations with 4, rather than 6, pay phones, and in
hospitals and shopping malls. Use of portable (less expensive)
TDD's is allowed.
- Dispersal of wheelchair seating areas in theaters will be
required only where there are more than 300 seats, rather than
in all cases. Seats with removable armrests (i.e., seats into
which persons with mobility impairments can transfer) will also
be required.
- Areas of refuge (areas with direct access to a stairway, and
where people who cannot use stairs may await assistance during a
emergency evacuation) will be required, as proposed, but the
final provisions are based on the Uniform Building Code. Such
areas are not required in alterations.
- Rather than requiring 5% of new hotel rooms to be accessible
to people with mobility impairments, between 2 and 4%
accessibility (depending on total number of rooms) is required.
In addition, 1% of the rooms must have roll-in showers.
- The proposed rule reserved the provisions on alterations to
homeless shelters. The final guidelines apply alterations
requirements to homeless shelters, but the requirements are less
stringent than those applied to other types of facilities.
- Parking spaces that can be used by people in vans (with lifts)
will be required.
- As mandated by the ADA, the Board has established a procedure
to be followed with respect to alterations to historic
facilities.
Summary of ADAAG
This section of the preamble summarizes the structure of ADAAG,
and highlights the more important portions.
- Sections 1 Through 3
Sections 1 through 3 contain general requirements, including
definitions.
- Section 4.1.1, Application
Section 4 contains scoping requirements. Section 4.1.1,
Application, provides that all areas of newly designed or newly
constructed buildings and facilities and altered portions of
existing buildings and facilities required to be accessible by
Sec.4.1.6 must comply with the guidelines unless otherwise
provided in Sec.4.1.1 or a special application section. It
addresses areas used only by employees as work areas, temporary
structures, and general exceptions.
Section 4.1.1(3) preserves the basic principle of the proposed
rule: Areas that may be used by employees with disabilities
shall be designed and constructed so that an individual with a
disability can approach, enter, and exit the area. The language
has been clarified to provide that it applies to any area used
only as a work area (not just to areas "that may be used by
employees with disabilities''), and that the guidelines do not
require that any area used as an individual work station be
designed with maneuvering space or equipped to be accessible.
The appendix to ADAAG explains that work areas must meet the
guidelines' requirements for doors and accessible routes, and
recommends, but does not require, that 5% of individual work
stations be designed to permit a person using a wheelchair to
maneuver within the space.
Further discussion of work areas is found in the preamble
concerning proposed Sec.36.401(b).
Section 4.1.1(5)(a) includes an exception for structural
impracticability that corresponds to the one found in
Sec.36.401(c) and discussed in that portion of the preamble.
- Section 4.1.2, Accessible Sites and Exterior Facilities: New
Construction
This section addresses exterior features, elements, or spaces
such as parking, portable toilets, and exterior signage, in new
construction. Interior elements and spaces are covered by
Sec.4.1.3.
The final rule retains the UFAS scoping for parking but also
requires that at least one of every eight accessible parking
spaces be designed with adequate adjacent space to deploy a lift
used with a van. These spaces must have a sign indicating that
they are van-accessible, but they are not to be reserved
exclusively for van users.
- Section 4.1.3, Accessible Buildings: New Construction
This section establishes scoping requirements for new
construction of buildings and facilities.
Sections 4.1.3 (1) through (4) cover accessible routes,
protruding objects, ground and floor surfaces, and stairs.
Section 4.1.3(5) generally requires elevators to serve each
level in a newly constructed building, with four exceptions
included in the subsection. Exception 1 is the "elevator
exception'' established in Sec.36.401(d), which must be read
with this section. Exception 4 allows the use of platform lifts
under certain conditions.
Section 4.1.3(6), Windows, is reserved. Section 4.1.3(7) applies
to doors.
Under Sec.4.1.3(8), at least 50% of all public entrances must be
accessible. In addition, if a building is designed to provide
access to enclosed parking, pedestrian tunnels, or elevated
walkways, at least one entrance that serves each such function
must be accessible. Each tenancy in a building must be served by
an accessible entrance. Where local regulations (e.g., fire
codes) require that a minimum number of exits be provided, an
equivalent number of accessible entrances must be provided. (The
latter provision does not require a greater number of entrances
than otherwise planned.)
ADAAG Section 4.1.3(9), with accompanying technical requirements
in Section 4.3, requires an area of rescue assistance (i.e., an
area with direct access to an exit stairway and where people who
are unable to use stairs may await assistance during an
emergency evacuation) to be established on each floor of a
multi-story building. This was one of the most controversial
provisions in the guidelines. The final ADAAG is based on
current Uniform Building Code requirements and retains the
requirement that areas of refuge (renamed "areas of rescue
assistance'') be provided, but specifies that this requirement
does not apply to buildings that have a supervised automatic
sprinkler system. Areas of refuge are not required in
alterations.
The next seven subsections deal with drinking fountains
(Sec.4.1.3(10)); toilet facilities (Sec.4.1.3(11)); storage,
shelving, and display units (Sec.4.1.3(12)), controls and
operating mechanisms (Sec.4.1.3(13)), emergency warning systems
(Sec.4.1.3(14)), detectable warnings (Sec.4.1.3(15)), and
building signage (Sec.4.1.3(16)). Paragraph 11 requires that
toilet facilities comply with Sec.4.22, which requires one
accessible toilet stall (600A60) in each newly constructed
restroom. In response to public comments, the final rule
requires that a second accessible stall (360A60) be provided in
restrooms that have six or more stalls.
ADAAG Section 4.1.3(17) establishes requirements for
accessibility of pay phones to persons with mobility
impairments, hearing impairments (requiring some phones with
volume controls), and those who cannot use voice telephones. It
requires one interior "text telephone'' to be provided at any
facility that has a total of four or more public pay phones.
(The term "text telephone'' has been adopted to reflect current
terminology and changes in technology.) In addition, text
telephones will be required in specific locations, such as
covered shopping malls, hospitals (in emergency rooms, waiting
rooms, and recovery areas), and convention centers.
Paragraph 18 of Section 4.1.3 generally requires that at least
five percent of fixed or built-in seating or tables be
accessible.
Paragraph 19, covering assembly areas, specifies the number of
wheelchair seating spaces and types and numbers of assistive
listening systems required. It requires dispersal of wheelchair
seating locations in facilities where there are more than 300
seats. The guidelines also require that at least one percent of
all fixed seats be aisle seats without armrests (or with
moveable armrests) on the aisle side to increase accessibility
for persons with mobility impairments who prefer to transfer
from their wheelchairs to fixed seating. In addition, the final
ADAAG requires that fixed seating for a companion be located
adjacent to each wheelchair location.
Paragraph 20 requires that where automated teller machines are
provided, at least one must comply with section 4.34, which,
among other things, requires accessible controls, and
instructions and other information that are accessible to
persons with sight impairments.
Under paragraph 21, where dressing rooms are provided, five
percent or at least one must comply with section 4.35.
- Section 4.1.5, Additions
Each addition to an existing building or facility is regarded as
an alteration subject to Sec..36.402 through 36.406 of subpart
D, including the date established in Sec.36.402(a). But
additions also have attributes of new construction, and to the
extent that a space or element in the addition is newly
constructed, each new space or element must comply with the
applicable scoping provisions of sections 4.1.1 to 4.1.3 for new
construction, the applicable technical specifications of
sections 4.2 through 4.34, and any applicable special provisions
in sections 5 through 10. For instance, if a restroom is
provided in the addition, it must comply with the requirements
for new construction. Construction of an addition does not,
however, create an obligation to retrofit the entire existing
building or facility to meet requirements for new construction.
Rather, the addition is to be regarded as an alteration and to
the extent that it affects or could affect the usability of or
access to an area containing a primary function, the
requirements in section 4.1.6(2) are triggered with respect to
providing an accessible path of travel to the altered area and
making the restrooms, telephones, and drinking fountains serving
the altered area accessible. For example, if a museum adds a new
wing that does not have a separate entrance as part of the
addition, an accessible path of travel would have to be provided
through the existing building or facility unless it is
disproportionate to the overall cost and scope of the addition
as established in Sec.36.403(f).
- Section 4.1.6, Alterations
An alteration is a change to a building or facility that affects
or could affect the usability of or access to the building or
facility or any part thereof. There are three general principles
for alterations. First, if any existing element or space is
altered, the altered element or space must meet new construction
requirements (section 4.1.6(1)(b)). Second, if alterations to
the elements in a space when considered together amount to an
alteration of the space, the entire space must meet new
construction requirements (section 4.1.6(1)(c)). Third, if the
alteration affects or could affect the usability of or access to
an area containing a primary function, the path of travel to the
altered area and the restrooms, drinking fountains, and
telephones serving the altered area must be made accessible
unless it is disproportionate to the overall alterations in
terms of cost and scope as determined under criteria established
by the Attorney General (Sec.4.1.6(2)).
Section 4.1.6 should be read with Sec..36.402 through 36.405.
Requirements concerning alterations to an area serving a primary
function are addressed with greater detail in the latter
sections than in section 4.1.6(2). Section 4.1.6(1)(j) deals
with technical infeasibility. Section 4.1.6(3) contains special
technical provisions for alterations to existing buildings and
facilities.
- Section 4.1.7, Historic Preservation
This section contains scoping provisions and alternative
requirements for alterations to qualified historic buildings and
facilities. It clarifies the procedures under the National
Historic Preservation Act and their application to alterations
covered by the ADA. An individual seeking to alter a facility
that is subject to the ADA guidelines and to State or local
historic preservation statutes shall consult with the State
Historic Preservation Officer to determine if the planned
alteration would threaten or destroy the historic significance
of the facility.
- Sections 4.2 Through 4.35
Sections 4.2 through 4.35 contain the technical specifications
for elements and spaces required to be accessible by the scoping
provisions (sections 4.1 through 4.1.7) and special application
sections (sections 5 through 10). The technical specifications
are the same as the 1980 version of ANSI A117.1 standard, except
as noted in the text by italics.
- Sections 5 Through 9
These are special application sections and contain additional
requirements for restaurants and cafeterias, medical care
facilities, business and mercantile facilities, libraries, and
transient lodging. For example, at least 5 percent, but not less
than one, of the fixed tables in a restaurant must be
accessible.
In section 7, Business and Mercantile, paragraph 7.2 (Sales and
Service Counters, Teller Windows, Information Counters) has been
revised to provide greater flexibility in new construction than
did the proposed rule. At least one of each type of sales or
service counter where a cash register is located shall be made
accessible. Accessible counters shall be dispersed throughout
the facility. At counters such as bank teller windows or
ticketing counters, alternative methods of compliance are
permitted. A public accommodation may lower a portion of the
counter, provide an auxiliary counter, or provide equivalent
facilitation through such means as installing a folding shelf on
the front of the counter at an accessible height to provide a
work surface for a person using a wheelchair.
Section 7.3., Check-out Aisles, provides that, in new
construction, a certain number of each design of check-out
aisle, as listed in a chart based on the total number of
check-out aisles of each design, shall be accessible. The
percentage of check-outs required to be accessible generally
ranges from 20% to 40%. In a newly constructed or altered
facility with less than 5,000 square feet of selling space, at
least one of each type of check-out aisle must be accessible. In
altered facilities with 5,000 or more square feet of selling
space, at least one of each design of check-out aisle must be
made accessible when altered, until the number of accessible
aisles of each design equals the number that would be required
for new construction.
- Section 9, Accessible Transient Lodging
Section 9 addresses two types of transient lodging: hotels,
motels, inns, boarding houses, dormitories, resorts, and other
similar places (sections 9.1 through 9.4); and homeless
shelters, halfway houses, transient group homes, and other
social service establishments (section 9.5). The interplay of
the ADA and Fair Housing Act with respect to such facilities is
addressed in the preamble discussion of the definition of "place
of public accommodation'' in Sec.36.104.
The final rule establishes scoping requirements for
accessibility of newly constructed hotels. Four percent of the
first hundred rooms, and roughly two percent of rooms in excess
of 100, must meet certain requirements for accessibility to
persons with mobility or hearing impairments, and an additional
identical percentage must be accessible to persons with hearing
impairments. An additional 1% of the available rooms must be
equipped with roll-in showers, raising the actual scoping for
rooms accessible to persons with mobility impairments to 5% of
the first hundred rooms and 3% thereafter. The final ADAAG also
provides that when a hotel is being altered, one fully
accessible room and one room equipped with visual alarms,
notification devices, and amplified telephones shall be provided
for each 25 rooms being altered until the number of accessible
rooms equals that required under the new construction standard.
Accessible rooms must be dispersed in a manner that will provide
persons with disabilities with a choice of single or
multiple-bed accommodations.
In new construction, homeless shelters and other social service
entities must comply with ADAAG; at least one type of amenity in
each common area must be accessible. In a facility that is not
required to have an elevator, it is not necessary to provide
accessible amenities on the inaccessible floors if at least one
of each type of amenity is provided in accessible common areas.
The percentage of accessible sleeping accommodations required is
the same as that required for other places of transient lodging.
Requirements for facilities altered for use as a homeless
shelter parallel the current MGRAD accessibility requirements
for leased buildings. A shelter located in an altered facility
must have at least one accessible entrance, accessible sleeping
accommodations in a number equivalent to that established for
new construction, at least one accessible toilet and bath, at
least one accessible common area, and an accessible route
connecting all accessible areas. All accessible areas in a
homeless shelter in an altered facility may be located on one
level.
Section 10, Transportation Facilities
Section 10 of ADAAG is reserved. On March 20, 1991, the ATBCB
published a supplemental notice of proposed rulemaking (56 FR
11874) to establish special access requirements for
transportation facilities. The Department anticipates that when
the ATBCB issues final guidelines for transportation facilities,
this part will be amended to include those provisions.
Subpart E -- Enforcement
Because the Department of Justice does not have authority to
establish procedures for judicial review and enforcement,
subpart E generally restates the statutory procedures for
enforcement.
Section 36.501 describes the procedures for private suits by
individuals and the judicial remedies available. In addition to
the language in section 308(a)(1) of the Act, Sec.36.501(a) of
this part includes the language from section 204(a) of the Civil
Rights Act of 1964 (42 U.S.C. 2000a - 3(a)) which is
incorporated by reference in the ADA. A commenter noted that the
proposed rule did not include the provision in section 204(a)
allowing the court to appoint an attorney for the complainant
and authorize the commencement of the civil action without the
payment of fees, costs, or security. That provision has been
included in the final rule.
Section 308(a)(1) of the ADA permits a private suit by an
individual who has reasonable grounds for believing that he or
she is "about to be'' subjected to discrimination in violation
of section 303 of the Act (subpart D of this part), which
requires that new construction and alterations be readily
accessible to and usable by individuals with disabilities.
Authorizing suits to prevent construction of facilities with
architectural barriers will avoid the necessity of costly
retrofitting that might be required if suits were not permitted
until after the facilities were completed. To avoid unnecessary
suits, this section requires that the individual bringing the
suit have `reasonable grounds'' for believing that a violation
is about to occur, but does not require the individual to engage
in a futile gesture if he or she has notice that a person or
organization covered by title III of the Act does not intend to
comply with its provisions.
Section 36.501(b) restates the provisions of section 308(a)(2)
of the Act, which states that injunctive relief for the failure
to remove architectural barriers in existing facilities or the
failure to make new construction and alterations accessible
"shall include'' an order to alter these facilities to make them
readily accessible to and usable by persons with disabilities to
the extent required by title III. The Report of the Energy and
Commerce Committee notes that "an order to make a facility
readily accessible to and usable by individuals with
disabilities is mandatory'' under this standard. H.R. Rep. No.
485, 101st Cong., 2d Sess, pt 4, at 64 (1990). Also, injunctive
relief shall include, where appropriate, requiring the provision
of an auxiliary aid or service, modification of a policy, or
provision of alternative methods, to the extent required by
title III of the Act and this part.
Section 36.502 is based on section 308(b)(1)(A)(i) of the Act,
which provides that the Attorney General shall investigate
alleged violations of title III and undertake periodic reviews
of compliance of covered entities. Although the Act does not
establish a comprehensive administrative enforcement mechanism
for investigation and resolution of all complaints received, the
legislative history notes that investigation of alleged
violations and periodic compliance reviews are essential to
effective enforcement of title III, and that the Attorney
General is expected to engage in active enforcement and to
allocate sufficient resources to carry out this responsibility.
Judiciary Report at 67.
Many commenters argued for inclusion of more specific provisions
for administrative resolution of disputes arising under the Act
and this part in order to promote voluntary compliance and avoid
the need for litigation. Administrative resolution is far more
efficient and economical than litigation, particularly in the
early stages of implementation of complex legislation when the
specific requirements of the statute are not widely understood.
The Department has added a new paragraph (c) to this section
authorizing the Attorney General to initiate a compliance review
where he or she has reason to believe there may be a violation
of this rule.
Section 36.503 describes the procedures for suits by the
Attorney General set out in section 308(b)(1)(B) of the Act. If
the Department has reasonable cause to believe that any person
or group of persons is engaged in a pattern or practice of
resistance to the full enjoyment of any of the rights granted by
title III or that any person or group of persons has been denied
any of the rights granted by title III and such denial raises an
issue of general public importance, the Attorney General may
commence a civil action in any appropriate United States
district court. The proposed rule provided for suit by the
Attorney General "or his or her designee.'' The reference to a
"designee'' has been omitted in the final rule because it is
unnecessary. The Attorney General has delegated enforcement
authority under the ADA to the Assistant Attorney General for
Civil Rights. 55 FR 40653 (October 4, 1990) (to be codified at
28 CFR 0.50(l).)
Section 36.504 describes the relief that may be granted in a
suit by the Attorney General under section 308(b)(2) of the Act.
In such an action, the court may grant any equitable relief it
considers to be appropriate, including granting temporary,
preliminary, or permanent relief, providing an auxiliary aid or
service, modification of policy or alternative method, or making
facilities readily accessible to and usable by individuals with
disabilities, to the extent required by title III. In addition,
a court may award such other relief as the court considers to be
appropriate, including monetary damages to persons aggrieved,
when requested by the Attorney General.
Furthermore, the court may vindicate the public interest by
assessing a civil penalty against the covered entity in an
amount not exceeding $50,000 for a first violation and not
exceeding $100,000 for any subsequent violation. Section
36.504(b) of the rule adopts the standard of section 308(b)(3)
of the Act. This section makes it clear that, in counting the
number of previous determinations of violations for determining
whether a "first'' or "subsequent'' violation has occurred,
determinations in the same action that the entity has engaged in
more than one discriminatory act are to be counted as a single
violation. A "second violation'' would not accrue to that entity
until the Attorney General brought another suit against the
entity and the entity was again held in violation. Again, all of
the violations found in the second suit would be cumulatively
considered as a "subsequent violation.''
Section 36.504(c) clarifies that the terms "monetary damages''
and "other relief'' do not include punitive damages. They do
include, however, all forms of compensatory damages, including
out-of-pocket expenses and damages for pain and suffering.
Section 36.504(a)(3) is based on section 308(b)(2)(C) of the
Act, which provides that, "to vindicate the public interest,'' a
court may assess a civil penalty against the entity that has
been found to be in violation of the Act in suits brought by the
Attorney General. In addition, Sec.36.504(d), which is taken
from section 308(b)(5) of the Act, further provides that, in
considering what amount of civil penalty, if any, is
appropriate, the court shall give consideration to "any good
faith effort or attempt to comply with this part.'' In
evaluating such good faith, the court shall consider "among
other factors it deems relevant, whether the entity could have
reasonably anticipated the need for an appropriate type of
auxiliary aid needed to accommodate the unique needs of a
particular individual with a disability.''
The "good faith'' standard referred to in this section is not
intended to imply a willful or intentional standard --that is,
an entity cannot demonstrate good faith simply by showing that
it did not willfully, intentionally, or recklessly disregard the
law. At the same time, the absence of such a course of conduct
would be a factor a court should weigh in determining the
existence of good faith.
Section 36.505 states that courts are authorized to award
attorneys fees, including litigation expenses and costs, as
provided in section 505 of the Act. Litigation expenses include
items such as expert witness fees, travel expenses, etc. The
Judiciary Committee Report specifies that such items are
included under the rubric of "attorneys fees'' and not "costs''
so that such expenses will be assessed against a plaintiff only
under the standard set forth in Christiansburg Garment Co. v.
Equal Employment Opportunity Commission, 434 U.S. 412 (1978).
(Judiciary report at 73.)
Section 36.506 restates section 513 of the Act, which encourages
use of alternative means of dispute resolution. Section 36.507
explains that, as provided in section 506(e) of the Act, a
public accommodation or other private entity is not excused from
compliance with the requirements of this part because of any
failure to receive technical assistance.
Section 36.305 Effective Date
In general, title III is effective 18 months after enactment of
the Americans with Disabilities Act, i.e., January 26, 2012.
However, there are several exceptions to this general rule
contained throughout title III. Section 36.508 sets forth all of
these exceptions in one place.
Paragraph (b) contains the rule on civil actions. It states
that, except with respect to new construction and alterations,
no civil action shall be brought for a violation of this part
that occurs before July 26, 1992, against businesses with 25 or
fewer employees and gross receipts of $1,000,000 or less; and
before January 26, 1993, against businesses with 10 or fewer
employees and gross receipts of $500,000 or less. In determining
what constitutes gross receipts, it is appropriate to exclude
amounts collected for sales taxes.
Paragraph (c) concerns transportation services provided by
public accommodations not primarily engaged in the business of
transporting people. The 18-month effective date applies to all
of the transportation provisions except those requiring newly
purchased or leased vehicles to be accessible. Vehicles subject
to that requirement must be accessible to and usable by
individuals with disabilities if the solicitation for the
vehicle is made on or after August 26, 1990.
Subpart F -- Certification of State Labs or Local Building Codes
Subpart F establishes procedures to implement section
308(b)(1)(A)(ii) of the Act, which provides that, on the
application of a State or local government, the Attorney General
may certify that a State law or local building code or similar
ordinance meets or exceeds the minimum accessibility
requirements of the Act. In enforcement proceedings, this
certification will constitute rebuttable evidence that the law
or code meets or exceeds the ADA's requirements.
Three significant changes, further explained below, were made
from the proposed subpart, in response to comments. First, the
State or local jurisdiction is required to hold a public hearing
on its proposed request for certification and to submit to the
Department, as part of the information and materials in support
of a request for certification, a transcript of the hearing.
Second, the time allowed for interested persons and
organizations to comment on the request filed with the
Department (Sec.36.605(a)(1)) has been changed from 30 to 60
days. Finally, a new Sec.36.608, Guidance concerning model
codes, has been added.
Section 36.601 establishes the definitions to be used for
purposes of this subpart. Two of the definitions have been
modified, and a definition of "model code'' has been added.
First, in response to a comment, a reference to a code "or part
thereof'' has been added to the definition of "code.'' The
purpose of this addition is to clarify that an entire code need
not be submitted if only part of it is relevant to
accessibility, or if the jurisdiction seeks certification of
only some of the portions that concern accessibility. The
Department does not intend to encourage "piecemeal'' requests
for certification by a single jurisdiction. In fact, the
Department expects that in some cases, rather than certifying
portions of a particular code and refusing to certify others, it
may notify a submitting jurisdiction of deficiencies and
encourage a reapplication that cures those deficiencies, so that
the entire code can be certified eventually. Second, the
definition of "submitting official'' has been modified. The
proposed rule defined the submitting official to be the State or
local official who has principal responsibility for
administration of a code. Commenters pointed out that in some
cases more than one code within the same jurisdiction is
relevant for purposes of certification. It was also suggested
that the Department allow a State to submit a single application
on behalf of the State, as well as on behalf of any local
jurisdictions required to follow the State accessibility
requirements. Consistent with these comments, the Department has
added to the definition language clarifying that the official
can be one authorized to submit a code on behalf of a
jurisdiction.
A definition of "model code'' has been added in light of new
Sec.36.608.
Most commenters generally approved of the proposed certification
process. Some approved of what they saw as the Department's
attempt to bring State and local codes into alignment with the
ADA. A State agency said that this section will be the backbone
of the intergovernmental cooperation essential if the
accessibility provisions of the ADA are to be effective.
Some comments disapproved of the proposed process as
timeconsuming and laborious for the Department, although some of
these comments pointed out that, if the Attorney General
certified model codes on which State and local codes are based,
many perceived problems would be alleviated. (This point is
further addressed by new Sec.36.608.)
Many of the comments received from business organizations, as
well as those from some individuals and disability rights
groups, addressed the relationship of the ADA requirements and
their enforcement, to existing State and local codes and code
enforcement systems. These commenters urged the Department to
use existing code-making bodies for interpretations of the ADA,
and to actively participate in the integration of the ADA into
the text of the national model codes that are adopted by State
and local enforcement agencies. These issues are discussed in
preamble section 36.406 under General comments.
Many commenters urged the Department to evaluate or certify the
entire code enforcement system (including any process for
hearing appeals from builders of denials by the building code
official of requests for variances, waivers, or modifications).
Some urged that certification not be allowed in jurisdictions
where waivers can be granted, unless there is a clearly
identified decision-making process, with written rulings and
notice to affected parties of any waiver or modification
request. One commenter urged establishment of a dispute
resolution mechanism, providing for interpretation (usually
through a building official) and an administrative appeals
mechanism (generally called Boards of Appeal, Boards of
Construction Appeals, or Boards of Review), before certification
could be granted.
The Department thoroughly considered these proposals but has
declined to provide for certification of processes of
enforcement or administration of State and local codes. The
statute clearly authorizes the Department to certify the codes
themselves for equivalency with the statute; it would be
ill-advised for the Department at this point to inquire beyond
the face of the code and written interpretations of it. It would
be inappropriate to require those jurisdictions that grant
waivers or modifications to establish certain procedures before
they can apply for certification, or to insist that no
deviations can be permitted. In fact, the Department expects
that many jurisdictions will allow slight variations from a
particular code, consistent with ADAAG itself. ADAAG includes in
Sec.2.2 a statement allowing departures from particular
requirements where substantially equivalent or greater access
and usability is provided. Several sections specifically allow
for alternative methods providing equivalent facilitation and,
in some cases, provide examples. (See, e.g., section 4.31.9,
Text Telephones; section 7.2(2) (iii), Sales and Service
Counters.) Section 4.1.6 includes less stringent requirements
that are permitted in alterations, in certain circumstances.
However, in an attempt to ensure that it does not certify a code
that in practice has been or will be applied in a manner that
defeats its equivalency with the ADA, the Department will
require that the submitting official include, with the
application for certification, any relevant manuals, guides, or
any other interpretive information issued that pertain to the
code. (Sec.36.603(c)(1).) The requirement that this information
be provided is in addition to the NPRM's requirement that the
official provide any pertinent formal opinions of the State
Attorney General or the chief legal officer of the jurisdiction.
The first step in the certification process is a request for
certification, filed by a "submitting official'' (Sec.36.603).
The Department will not accept requests for certification until
after January 26, 1992, the effective date of this part. The
Department received numerous comments from individuals and
organizations representing a variety of interests, urging that
the hearing required to be held by the Assistant Attorney
General in Washington, DC, after a preliminary determination of
equivalency (Sec.36.605(a)(2)), be held within the State or
locality requesting certification, in order to facilitate
greater participation by all interested parties. While the
Department has not modified the requirement that it hold a
hearing in Washington, it has added a new subparagraph
36.603(b)(3) requiring a hearing within the State or locality
before a request for certification is filed. The hearing must be
held after adequate notice to the public and must be on the
record; a transcript must be provided with the request for
certification. This procedure will insure input from the public
at the State or local level and will also insure a Washington,
DC, hearing as mentioned in the legislative history.
The request for certification, along with supporting documents
(Sec.36.603(c)), must be filed in duplicate with the office of
the Assistant Attorney General for Civil Rights. The Assistant
Attorney General may request further information. The request
and supporting materials will be available for public
examination at the office of the Assistant Attorney General and
at the office of the State or local agency charged with
administration and enforcement of the code. The submitting
official must publish public notice of the request for
certification.
Next, under Sec.36.604, the Assistant Attorney General's office
will consult with the ATBCB and make a preliminary determination
to either (1) find that the code is equivalent (make a
"preliminary determination of equivalency'') or (2) deny
certification. The next step depends on which of these
preliminary determinations is made.
If the preliminary determination is to find equivalency, the
Assistant Attorney General, under Sec.36.605, will inform the
submitting official in writing of the preliminary determination
and publish a notice in the Federal Register informing the
public of the preliminary determination and inviting comment for
60 days. (This time period has been increased from 30 days in
light of public comment pointing out the need for more time
within which to evaluate the code.) After considering the
information received in response to the comments, the Department
will hold an hearing in Washington. This hearing will not be
subject to the formal requirements of the Administrative
Procedure Act. In fact, this requirement could be satisfied by a
meeting with interested parties. After the hearing, the
Assistant Attorney General's office will consult again with the
ATBCB and make a final determination of equivalency or a final
determination to deny the request for certification, with a
notice of the determination published in the Federal Register.
1If the preliminary determination is to deny certification,
there will be no hearing (Sec.36.606). The Department will
notify the submitting official of the preliminary determination,
and may specify how the code could be modified in order to
receive a preliminary determination of equivalency. The
Department will allow at least 15 days for the submitting
official to submit relevant material in opposition to the
preliminary denial. If none is received, no further action will
be taken. If more information is received, the Department will
consider it and make either a final decision to deny
certification or a preliminary determination of equivalency. If
at that stage the Assistant Attorney General makes a preliminary
determination of equivalency, the hearing procedures set out in
Sec.36.605 will be followed.
Section 36.607 addresses the effect of certification. First,
certification will only be effective concerning those features
or elements that are both (1) covered by the certified code and
(2) addressed by the regulations against which they are being
certified. For example, if children's facilities are not
addressed by the Department's standards, and the building in
question is a private elementary school, certification will not
be effective for those features of the building to be used by
children. And if the Department's regulations addressed
equipment but the local code did not, a building's equipment
would not be covered by the certification.
In addition, certification will be effective only for the
particular edition of the code that is certified. Amendments
will not automatically be considered certified, and a submitting
official will need to reapply for certification of the changed
or additional provisions.
Certification will not be effective in those situations where a
State or local building code official allows a facility to be
constructed or altered in a manner that does not follow the
technical or scoping provisions of the certified code. Thus, if
an official either waives an accessible element or feature or
allows a change that does not provide equivalent facilitation,
the fact that the Department has certified the code itself will
not stand as evidence that the facility has been constructed or
altered in accordance with the minimum accessibility
requirements of the ADA. The Department's certification of a
code is effective only with respect to the standards in the
code; it is not to be interpreted to apply to a State or local
government's application of the code. The fact that the
Department has certified a code with provisions concerning
waivers, variances, or equivalent facilitation shall not be
interpreted as an endorsement of actions taken pursuant to those
provisions.
The final rule includes a new Sec.36.608 concerning model codes.
It was drafted in response to concerns raised by numerous
commenters, many of which have been discussed under General
comments (Sec.36.406). It is intended to assist in alleviating
the difficulties posed by attempting to certify possibly tens of
thousands of codes. It is included in recognition of the fact
that many codes are based on, or incorporate, model or consensus
standards developed by nationally recognized organizations
(e.g., the American National Standards Institute (ANSI);
Building Officials and Code Administrators (BOCA) International;
Council of American Building Officials (CABO) and its Board for
the Coordination of Model Codes (BCMC); Southern Building Code
Congress International (SBCCI)). While the Department will not
certify or "precertify'' model codes, as urged by some
commenters, it does wish to encourage the continued viability of
the consensus and model code process consistent with the
purposes of the ADA.
The new section therefore allows an authorized representative of
a private entity responsible for developing a model code to
apply to the Assistant Attorney General for review of the code.
The review process will be informal and will not be subject to
the procedures of Sec..36.602 through 36.607. The result of the
review will take the form of guidance from the Assistant
Attorney General as to whether and in what respects the model
code is consistent with the ADA's requirements. The guidance
will not be binding on any entity or on the Department; it will
assist in evaluations of individual State or local codes and may
serve as a basis for establishing priorities for consideration
of individual codes. The Department anticipates that this
approach will foster further cooperation among various
government levels, the private entities developing standards,
and individuals with disabilities.
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