HOAs and Compliance with the Americans with Disabilities Act What is the Americans with Disabilities Act(ADA)? Do homeowners associations need to worry about it? This article will attempt to shed some light on the current law and the direction it may be taking which may affect associations in the future. The Americans with Disabilities Act (1990) is wide-ranging legislation intended to make society more accessible to people with disabilities. It was also enacted to prevent discrimination against individuals who have a disability. (The ADA is set forth in 42 USCS §§12100, et seq.) The ADA is divided into five areas: employment, public services, public accommodations, telecommunications and miscellaneous. Homeowner associations need to be concerned with public accommodations. Definitions The ADA's definition of "disabled" is "(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 impairment; or (C) being regarded as having such an impairment." [42 USCS 12102(2)] For example, someone in a wheelchair or who is hearing or vision impaired is considered to have a disability. A place of public accommodation is defined as "a facility, operated by a private entity, whose operations affect commerce. . ." (28 CFR 36.104). How the ADA Applies With these definitions in mind, let's see how ADA applies specifically to homeowner associations. An association must comply with the ADA in providing reasonable accommodations for its residents (handicapped parking spaces, permitting modifications to a disabled person's unit and allowing service dogs on the premises). These necessities are obvious. What is not so apparent is the ADA's definition of "public accommodation". A public accommodation is a facility "whose operations affect commerce . . ." (28 CFR 36.104) The law does not define which of the association's activities are subject to ADA. Does this mean a clubhouse, a pool, a golf course, tennis courts, a playground, and/or a gym are public accommodations? If the answer is "yes" (which these authors think is the trend of the law), then these facilities must comply with the law. [42 USCS 12181(7)]. A recent U.S. Department of Justice settlement held that a private entity that owned a golf course was a public accommodation pursuant to the ADA. This entity (referred to by the Court as an "association") was alleged to have discriminated against disabled golfers by not modifying its rules restricting the use of golf carts, which prevented those with disabilities from being able to play the course and enjoy the goods, services, facilities, and privileges of the public accommodation. Pursuant to the settlement, the association modified its policies to make the golf course accessible to disabled individuals. (Settlement Agreement under the Americans with Disabilities Act of 1990 between the United States of America and Sun City Summerlin Community, Inc., dated April 16, 2002, for Complaint DJ# 202-46-44). This sets a precedence clearly indicating that similar privately owned and operated facilities will be required to comply (homeowners associations are also private entities). For homeowner associations, this may include any place of public gathering, any location for exercise or recreation, or any business facility operated by the association or its members. In addition, any commercial facility within an association must comply. This would include a rental office within the association, as well as any residential unit that is wholly or partially used as a home office, or for business purposes. (28 CFR 36.207) An association should check its CC&R's for the proper use of a residential unit and proper "office" use and customer contact in a home office should be eliminated to avoid compliance with ADA requirements. ADA does not apply to purely residential areas of the association. [Independent Housing Services of San Francisco v. Fillmore Center Associates (1993) 540 F. Supp. 1328] Further, in a case that peers into the future for homeowners associations, a Court recently held that access to places of public accommodation (specifically sidewalk access) must meet ADA requirements (Barden v. City of Sacramento (2002) 2 C.D.O.S. 5193). This means that any roads, sidewalks, pathways, halls and doorways which lead to places of public accommodation or commercial facilities must be accessible to those with disabilities. Make those pavement surfaces even! ADA requirements also apply to restrooms available for use by customers who use a public accommodation. Other cases have held that homeowner associations should be considered "mini-governments" (Cohen v. Kite Hill Community Association (1983) 142 CA3d 642). This means that the ADA's requirements prohibiting discrimination by public entities based on a disability also apply. This section states that no "individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity." (42 USCS 12132) Thus, any shuttle service, recreational programs (such as aerobics or dance lessons in the clubhouse), and any other service or program sponsored by the association would have to make its facilities and services fully accessible to disabled persons so that they can fully enjoy them. Commercial Associations What about commercial associations or mixed use associations (part commercial, part residential)? Clearly, under the ADA, compliance is required. Requirements for Compliance with the ADA in Hiring and Facilities The following outlines the steps an association must take to comply with the ADA in its hiring practices. The general rule is that no employer may discriminate against a qualified individual with a disability because of that disability. To fall within this category, the individual must be able to perform the essential functions of the position, either with or without reasonable accommodation. [42 USCS 12112(a)] More specifically, the Act requires that the employer make reasonable accommodations so that disabled individuals can have equal consideration in hiring and promotion, despite his/her disability. These reasonable accommodations include: "(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules,reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." [42 USCS 12111(9)] If the association has facilities which fall under the public accommodations and commercial facilities provision as outlined above, the association must comply with the ADA. The general rule is that a place of public accommodation cannot in any way prevent full enjoyment of the facility by an individual with a disability. It can impose restrictions which incidentally affect those with disabilities if they are for a legitimate safety reason, based on an actual risk. In answer to an often asked question, the place of public accommodation cannot charge the disabled individual or group using the facility for the cost of complying with the ADA requirements. (28 CFR 36.301) What Changes does the ADA Require? Beyond this general rule, the ADA imposes a duty to make accommodations to places of public accommodation and commercial facilities. This requirement has several parts. First, the association must modify its policies, practices and procedures to make it possible for an individual with disabilities to have full enjoyment of the facility or service being offered. For example, the use of service dogs must be permitted. (28 CFR 36.302) Second, auxiliary aids and services should be provided when necessary to provide full enjoyment of the facility or service. Examples of auxiliary aids and services include providing qualified interpreters, telephone handset amplifiers, assistive listening devices, telecommunications devices for deaf persons (TTD's), brailed materials, and qualified readers. (28 CFR 36.303) Third, the ADA requires removal of barriers. This means that any architectural or communication barriers must be removed, when this can be achieved without much difficulty or expense. Examples of this include installing ramps; making curb cuts in sidewalks and entrances; rearranging tables, chairs, vending machines, display racks and other furniture; repositioning telephones; adding raised markings on elevator control buttons; installing flashing alarm lights; widening doors; installing offset hinges to widen doorways; eliminating a turnstile or providing an alternative accessible path; installing accessible door hardware; installing grab bars in toilet stalls; rearranging toilet partitions to increase maneuvering space; insulating lavatory pipes under sinks to prevent burns; installing a raised toilet seat; installing a full-length bathroom mirror; repositioning the paper towel dispenser in the bathroom; creating designated accessible parking spaces; installing an accessible paper cup dispenser at an existing inaccessible water fountain; and removing high pile, low density carpeting. (28 CFR 36.304) New Construction The ADA requires that any new construction or significant modifications to existing places of public accommodation or facilities be fully accessible to those with disabilities. Therefore, if the association builds any new facilities which will fall under the public accommodations category, or that are to be used for commercial purposes, these must be built, to the extent it is structurally practical, so that they are accessible to individuals with disabilities, including those who require a wheelchair. Similarly, if an association makes 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 of it, the part modified must fully comply with ADA requirements. (28 CFR 36.402) Elevators There is currently no requirement under the ADA to install an elevator in buildings used for commercial facilities or public accommodations. There is an exception if the building is used as a shopping center, professional office of a healthcare provider, or if it is three stories or higher, and has 3000 or more square feet per story. In these instances, the ADA requires installation of an elevator. (28 CFR 36.404) Failure to Comply ADA violations are not enforced by the local government, but rather by private civil actions and by the Attorney General who can intervene on behalf of the disabled individual who suffered the alleged discrimination. Remedies can include an injunction requiring compliance, which means that the necessary accommodations be made, and other damages the Court deems appropriate, including monetary damages and a civil penalty aimed at vindicating the public interest. (28 CFR 36.504) Conclusion Homeowner associations have been held to be mini-governments and have been held to conform to governmental standards when performing some of their functions. Homeowner associations should be aware that, while the ADA does not specifically target them, there are situations which can bring non-residential areas under these requirements, such as in its hiring practices, or if they use their facilities in a way that brings them under the wide umbrella of the ADA. There are still many gray areas involving the level of compliance required by an association. For example, the law is not clear in defining what constitutes a place of public accommodation within a homeowners association, whether service people, such as food delivery people or healthcare providers, entering into the association trigger a situation where compliance is warranted. However, the trend is moving toward preventing any possible discrimination or exclusion of those with disabilities as outlined in the Congressional Findings and Purposes to the ADA, and evidenced by the requirement that new construction and alterations be compliant. In light of this trend, and since facilities such as a pool, clubhouse, or gym, which are made available to the public, could fall within the public accommodations category, it is important for associations to be aware of the requirements imposed by the ADA and to take measures to comply with them. If an association takes action now, it will already be on its way to compliance when the law eventually evolves to distinctly outline a policy for homeowners associations, and may avoid potential litigation for discrimination. For further details and specifications on compliance requirements, see 28 CFR 36 Appendix A.
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