Access To Public Accommodations: Proposed ADA Regulations Will Be Costly For Businesses When Adopted

Friday, August 1, 2008 - 01:00

Editor: Would you tell us about your practice at Epstein Becker & Green?

Vu: My area of focus is civil rights law and, in particular, disability law. Prior to joining Epstein Becker & Green I was at the Civil Rights Division of the Department of Justice, where I oversaw the Disability Rights Section. That section is responsible for enforcing Title III of the Americans with Disabilities Act. At EBG, I serve as co-chair of the firm's Disability Law Group. My disability law practice consists of advising public accommodations and employers on how to comply with the ADA and state accessibility laws, as well as defending them in discrimination lawsuits brought under these statutes. I also am ADA counsel for national associations representing the lodging industry and small business and have been very closely involved with the public comment process for the proposed ADA Title III regulations.

Editor : You mentioned Title III of the ADA. Would you give our readers a brief overview of this provision?

Vu : Title III of the ADA is a federal statute that prohibits discrimination against persons with disabilities by public accommodations. The statute lists 12 types of private businesses that are covered, including lodging facilities, restaurants, entertainment venues, retail or service establishments, recreation facilities, private places of education, child care centers, and hospitals. Essentially, any venue that opens its doors to the public is a public accommodation. Title III of the ADA requires owners, operators and landlords of public accommodations to provide accessible facilities for persons with disabilities, and to make reasonable modifications in policies, practices and procedures in order to make their goods and services accessible to persons with disabilities. They must provide auxiliary aids and services to persons with disabilities to enable them to enjoy the amenities offered by the public accommodation. There are some limited defenses to these requirements, which are very fact-dependent.

For example, a restaurant that prohibits patrons from bringing their pets onto the premises would be required under the ADA to modify that policy to permit a service dog to accompany its disabled owner. Similarly, a hospital treating a deaf patient would be required to provide, at no cost to the patient, a sign-language interpreter to enable the patient to communicate with his physician on matters concerning his medical treatment.

Editor : I understand that the Department of Justice has proposed new regulations under Title III. What do the proposed regulations address?Vu: The current regulations include a comprehensive set of requirements about what elements in a public accommodation and/or commercial facility must be accessible and the technical specifications that must be met for such elements to be accessible. These are very detailed requirements that govern everything from how high an accessible toilet seat has to be to how a fitting room has to be configured. The Department of Justice is proposing an extensive revision of these standards in addition to a number of new rules regarding service animals, hotel reservations, and the use of motorized personal mobility devices other than wheelchairs. The DOJhas estimated that compliance with the revised and new requirements will cost nearly $23 billion nationwide.

Editor: Are some industry sectors going to be more affected than others?

Vu : Every business sector will be affected. The hospitality industry will be significantly impacted because hotels have so many elements that are covered by the accessibility standards. In addition, under the proposed regulations, hotels would be required to guarantee accessible rooms to the extent that they guarantee other types of rooms, and they would have to be able to describe to the guest the accessibility features of their hotel as well as their accessible rooms. There are also proposed requirements with respect to accessible guest-room bathrooms, exercise rooms, swimming pools, saunas, and steamrooms.

Retailers will be adversely affected if the proposed rules are finalized in the current form as well. There are many specific requirements. The proposed regulations, for example, do not exclude self-service display units from having to be within the reach range of individuals with disabilities, which is a maximum of 48 inches from the floor. This will dramatically reduce selling space and revenue if not corrected in the final regulations. Proposed accessible fitting room changes will also require retailers to reconfigure the layout of their currently compliant fitting rooms in future alterations which will increase renovations costs.

Editor: Will businesses have to immediately retrofit their existing facilities when the regulation takes effect?

Vu: Yes, for newly covered elements and those elements that do not comply with the current regulations, businesses will have to immediately retrofit their existing facilities. Those elements that do comply with current regulations do not have to be immediately retrofited but must be brought up to the new standards when they are altered or replaced in the future. Although this rule is reasonable for most elements, it does not go far enough for some elements. For example, fixtures in currently compliant single-user restrooms, when replaced or altered in the future, will have to be relocated to comply with the new rules. This imposes a substantial cost that would not have been incurred because, in the absence of the rule change, the business owner would have only replaced the fixtures, not moved them.

Editor: At the present time these are proposed regulations. When is it anticipated that final regulations will come into play?

Vu: The comment period ends on August 18 of this year, and the DOJ has said that it intends to issue the final regulations before the end of the Bush Administration.

Editor: Are small businesses exempt from the requirements?

Vu: No. Every public accommodation is subject to the requirements. There is, however, a proposed safe harbor for qualified small businesses relating to the obligation to remove barriers to accessibility in existing facilities. Under the proposed rule, if an element does not comply with the accessibility standards for alterations and new construction, that element is considered to be a barrier. There is, then, an obligation to remove the barrier if such removal is "readily achievable." This phrase is defined by the ADA as "easily accomplishable, without much difficulty or expense." The proposed small business safe harbor states that if a small business has spent up to one percent of its gross revenue from the preceding year on barrier removal, it has satisfied its barrier removal obligation. This is not a sensible provision because it does not reflect the real stream of income that a small business has to pay for barrier removal. Net income should be the basis of such a determination, not gross revenue.

Editor: What about facilities constructed before the ADA was enacted?

Vu: Facilities constructed prior to January 26, 1993, when the ADA accessibility standards took effect, have been under two sets of obligations. The first is an ongoing obligation to engage in readily achievable barrier removal. The second is to comply with the current ADA standards in making alterations to the maximum extent feasible. Those two obligations will continue to be in effect after the proposed rules take effect. However, the work that will have to be done to remove barriers and in alterations will have to result in greater accessibility and as a result will also be more costly. If the facility has already brought some elements into compliance with the current ADA standards, then those elements would not have to be made to comply with the new requirements until they are altered in the future.

Editor: What are the consequences of not complying with the ADA and the proposed regulations once they become final?

Vu : The ADA provides for private enforcement actions by individuals as well as by advocacy organizations representing such individuals. In those actions the plaintiffs can seek injunctive relief to have the violation remedied and attorneys' fees. While the ADA does not provide for monetary damages, many state statutes in this area of the law do. California, which actually has more demanding accessibility standards than the federal government, is a good example. The DOJ can also bring an enforcement action and can seek compensatory damages for victims and civil penalties in addition to injunctive relief.

Editor: Do you think these changes will increase a business's exposure to litigation?

Vu : Once finalized, these regulations will provide a fertile ground for ADA litigation, particularly for the plaintiffs' bar. In addition to extending their reach to facilities that were not regulated in the past - play areas, swimming pools, exercise facilities, and so on - these regulations are very complicated. Complexity is, almost invariably, a basis for ambiguity, and whenever there is ambiguity in a particular area of law that area becomes a target for litigation.

Editor: What can a business do to minimize the risk of litigation?

Vu : Several things. It is particularly important for a business to know the state of its facilities at the time the regulations take effect so that it can know what elements are subject to the safe harbor for elements that are in compliance with current law at the time the regulations are issued. That means conducting a facilities accessibility audit.

It is equally important for businesses to consult with counsel concerning any immediate obligations to retrofit existing facilities. And, of course, it is essential to seek ADA expertise whenever an alteration or renovation is under consideration in order to ensure compliance.

Editor: Any thoughts about whether some of the issues you have raised will be addressed in the final regulations?

Vu: I have some hope that the DOJ will provide clarification on the many apparent oversights that the proposed regulations contain, but I am not optimistic about significant changes. In the first place, there is not a great deal of time remaining if the DOJ is to have final regulations in place by the end of the Bush Administration. In addition, the disability advocacy community is very active, and the DOJ is under great pressure to issue regulations that increase accessibility irrespective of the cost to society.

Please email the interviewee at mvu@ebglaw.com with questions about this interview.