A Guide to Titles II III of the ADA for People with Vision Loss by guy21

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									A Guide to Titles II & III of the ADA for People with
Vision Loss


The Americans with Disabilities Act Communications
Accommodations Project
Prepared by
Governmental Relations Department
American Foundation for the Blind
820 First Street, N.E., Suite 400
Washington, DC 20002
Written by
Scott Marshall, J.D.
Vice President, Governmental Relations
American Foundation for the Blind
Funded by a grant from the U.S. Department of Justice

A document containing questions and answers about the
ADA cannot address every barrier to access which you may
face as a person who is blind, deaf-blind, or visually
impaired. Rather, the questions and answers in this
document have been carefully selected because they involve
the application of ADA principles, concepts, and
interpretations that should guide you when applying the ADA
to your own real-life problems or situations.
Section I of this document explains some basic ADA
concepts and definitions. These concepts apply primarily to
places of public accommodation covered by Title III of the
ADA. The broad range of Title III obligations relating to
"places of public accommodation" must be met by entities
that the Department of Justice regulation labels as "public
accommodations." In order to be considered a public
accommodation with Title III obligations, an entity must be
private and it must:
* Own;
* Lease;
* Lease to; or
* Operate a place of public accommodation. What is a place
of public accommodation? A place of public accommodation
is a facility whose operations:
* Affect commerce; and
* Fall within at least one of the following 12 categories:
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1. Places of lodging (e.g., inns, hotels, and motels) (except
for owner-occupied establishments renting fewer than six
rooms);
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2. Establishments serving food or drink (e.g., restaurants
and bars);
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3. Places of exhibition or entertainment (e.g., motion picture
houses, theaters, concert halls, and stadiums);
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4. Places of public gathering (e.g., auditoriums, convention
centers, and lecture halls);
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5. Sales or rental establishments (e.g., bakeries, grocery
stores, hardware stores, and shopping centers);
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6. Service establishments (e.g., laundromats, dry-cleaners,
banks, barber shops, beauty shops, travel services, shoe
repair services, funeral parlors, gas stations, offices of
accountants or lawyers, pharmacies, insurance offices, and
professional offices of health care providers, and hospitals);
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7. Public transportation terminals, depots, or stations (not
including facilities relating to air transportation);
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8. Places of public display or collection (e.g., museums,
libraries, and galleries);
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9. Places of recreation (e.g., parks, zoos, and amusement
parks);
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10. Places of education (e.g., nursery schools, elementary,
secondary, undergraduate, or postgraduate private schools);
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11. Social service center establishments (e.g., day-care
centers, senior citizen centers, homeless shelters, food
banks, and adoption agencies); and
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12. Places of exercise or recreation (e.g., gymnasiums,
health spas, bowling alleys, and golf courses).
In Section I, you will find the meaning of terms like "undue
burden," "readily achievable," and "fundamental alteration."
Sections II and III present real-life scenarios that illustrate
ADA compliance by both state or local governments and
places of public accommodation. If you need further help in
analyzing the application of the ADA, you should contact one
of the organizations listed in the resource list for further
assistance.
NOTE: In addition to their obligations under Titles II and III,
state and local governments and private businesses may
also have certain obligations regarding employment covered
by Title I of the ADA. If you need information regarding
employment you should contact the Equal Employment
Opportunity Commission (EEOC). The EEOC's address and
phone number are contained in the resource list. In addition,
Titles II and III of the ADA cover certain types of
transportation. For information concerning the transportation
provisions of the ADA, contact the U.S. Department of
Transportation (DOT). The DOT's address and telephone
number are contained in the resource list. You may also
wish to obtain copies of the Title II and Title III regulations
together with their corresponding Technical Assistance
Manuals, which are published by the U.S. Department of
Justice (see the resource list for the address). The purpose
of this document is to provide advice to persons who are
blind, deaf-blind, or visually impaired concerning their rights
and obligations under Titles II and III of the Americans with
Disabilities Act (ADA).
Section I: General Concepts and Definitions
Let's start with the most basic question:
What is the ADA?
The ADA is a civil rights law signed by President Bush on
July 26, 1990. The law mandates that individuals with
disabilities shall have access to jobs, public
accommodations, government services, public
transportation, and telecommunications--in short,
participation in, and full access to, all aspects of society. The
law is designed to be flexible in the way which state and
local governments and businesses can comply with ADA
requirements and further recognizes that certain
accommodations may be too costly or burdensome for a
particular business or government agency to provide.
Is the ADA the supreme law of the land with respect to
disability civil rights?
Not always. Section 501 of the ADA provides that the ADA
does not supersede state and local laws to the extent that
state and local disability laws provide greater protection as
compared to the ADA. Many states have laws guaranteeing
the rights of persons with disabilities. These state laws differ
widely in terms of who is protected, the definition of a public
accommodation, the size of employers covered, and
remedies (including injunctions or monetary damages) for
violation of the law. The ADA is not the only law relating to
disability rights and, accordingly, you should consult your
state and local laws with respect to your rights or obligations.
Since the ADA is patterned after Section 504 of the
Rehabilitation Act of 1973 as amended, which is familiar to
everyone, compliance with the ADA will be easy. Right?
Section 504 bans discrimination on the basis of disability by
recipients of federal funds. Although much of the
interpretation of Section 504 is reflected in the ADA and its
regulations, some provisions go beyond Section 504. In
addition, although recipients of federal funds have been
subject to Section 504 for many years, the ADA now applies
to many individuals and entities who know nothing about
Section 504 and its regulatory and judicial history. One
recent survey found that only 18 percent of the American
public has heard of the ADA. Thus, effective compliance with
the ADA will involve an educational effort in which we all
must participate. Knowing one's legal rights and obligations
under the ADA is but the first step in this process.
In general, what must a state or local government or place of
public accommodation do for patrons who are blind, deaf-
blind, or visually impaired to comply with Titles II and III of
the ADA?
Generally speaking, individuals who are blind, deaf-blind, or
visually impaired may not be denied full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations provided by a state or local
government or place of public accommodation. In other
words, entities such as hospitals, nursing homes, hotels,
government agencies, retail establishments, restaurants,
hotels, day-care centers, and professional offices of health
care providers must ensure that persons who are blind, deaf-
blind, or visually impaired have an equal opportunity to
participate in and benefit from all of the goods and services
provided by such entities. This may mean, depending on the
circumstances, that policies or procedures must be modified,
discriminatory eligibility criteria eliminated, auxiliary aids and
services provided, or structural communication barriers
removed in existing facilities. For example, structural
communication barriers may be eliminated by using tactile
and contrasting signage. Barriers to the acquisition of
information may be eliminated through the provision of
auxiliary aids and services. Auxiliary aids and services that
may be provided include, but are not limited to, readers,
taped texts, braille materials, and acquisition or modification
of equipment.
Who decides what type of auxiliary aid should be provided?
Public accommodations should consult with the individual
with the disability whenever possible to determine what type
of auxiliary aid is needed to ensure effective communication.
In many cases, more than one type of auxiliary aid or service
will result in effective communication. While consultation is
strongly encouraged, the ultimate decision as to what
measures to take to ensure effective communication rests in
the hands of the public accommodation, provided that the
method chosen results in effective communication. Note,
however, that under Title II (state and local government
services) primary consideration must be given to the
accommodation chosen by the individual with a disability.
That means that the individual's choice of accommodation,
aid, or service must be honored, unless the Title II entity can
prove that another effective means of communication exists
or that use of the means chosen by the individual with a
disability would constitute an undue burden or fundamental
alteration of the program or activity in question.
What are the limits on the auxiliary aids and services
requirement?
The ADA does not require state and local governments or
places of public accommodation to provide auxiliary aids or
services that would result in an "undue burden" or in a
"fundamental alteration" in the nature of the goods or
services it provides. However, these entities still have a duty
to furnish any available alternative auxiliary aid that would
achieve effective communication and would not result in a
fundamental alteration or undue burden.
When would providing an auxiliary aid or service be an
undue burden?
An undue burden is something that involves a significant
difficulty or expense. Among the factors to be considered in
determining whether an action would result in an undue
burden for a place of public accommodation are the
following:
1. The nature and cost of the action;
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2. The overall financial resources of the site or sites
involved; the number of persons employed at the site; the
effect on expenses and resources; legitimate safety
requirements necessary for safe operation, including crime
prevention measures; or any other impact of the action on
the operation of the site;
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3. The geographic separateness and the administrative or
fiscal relationship of the site or sites in question to any
parent corporation or entity;
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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
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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.
The definition of undue burden is identical to the definition of
undue hardship used in Title I (employment) of the ADA.
"Undue hardship" is the limitation on an employer's
obligation to reasonably accommodate an applicant or
employee.
What is a fundamental alteration?
A fundamental alteration is a modification that is so
significant that it alters the essential nature of the programs,
activities, goods, services, facilities, privileges, advantages,
or accommodations offered.
Who pays for auxiliary aids or services?
Auxiliary aids or services must be provided free. A person
who is blind, deaf-blind, or visually impaired may not be held
responsible, directly or indirectly, for the costs of the auxiliary
aid. However, the cost of providing auxiliary aids can be
treated like other overhead costs which are passed on to all
customers.
What is meant by the term "readily achievable" in the ADA?
Public accommodations are required to remove structural
barriers in existing facilities if it is "readily achievable" to do
so. "Readily achievable" means easily accomplishable and
able to be carried out without much difficulty or expense.
Determining if barrier removal is readily achievable is
necessarily a case-by-case judgment. Factors to consider
include:
1. The nature and cost of the action;
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2. The overall financial resources of the site or sites
involved; the number of persons employed at the site; the
effect on expenses and resources; legitimate safety
requirements necessary for safe operation, including crime
prevention measures; or any other impact of the action on
the operation of the site;
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3. The geographic separateness and the administrative or
fiscal relationship of the site or sites in question to any
parent corporation or entity;
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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
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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.
If the public accommodation is a facility that is owned or
operated by a parent entity that conducts operations at many
different sites, the public accommodation must consider the
resources of both the local facility and the parent entity to
determine if removal of a particular barrier is "readily
achievable." The administrative and fiscal relationship
between the local facility and the parent entity must also be
considered in evaluating what resources are available for
any particular act of barrier removal.
What types of modifications are generally considered
"readily achievable?"
There is no definitive answer to this question. Whether or not
a modification is readily achievable is to be determined on a
case-by-case basis in light of the particular circumstances
presented and the factors discussed above.
The Justice Department's regulation contains a list of 21
examples of modifications that may be readily achievable in
most, but not all, cases. The list is intended to be illustrative.
It includes items such as the installation of raised markings
on elevators.
What is the difference between the "undue burden"
standard, which relates to providing auxiliary aids and
services, and the "readily achievable" standard for the
removal of structural barriers?
A public accommodation is required to remove structural
barriers only when it is "readily achievable" to do so.
"Readily achievable" means easily accomplishable and able
to be carried out without much difficulty or expense. By
contrast, the undue burden standard requires a greater level
of effort by a public accommodation in providing auxiliary
aids and services than does the "readily achievable"
standard for removing structural barriers in existing facilities.
Although "readily achievable" is therefore a "lesser"
standard, the factors to be considered in determining what is
readily achievable are identical to those listed above for
determining undue burden.
Most of the accommodations, aids, and services of
importance to persons who are blind, deaf-blind, or visually
impaired persons are not structural in nature and thus are
usually auxiliary aids or services that frequently involve
minimal cost. Items such as the provision of readers, taped
texts, or sighted guide assistance are auxiliary aids or
services that places of public accommodation and state and
local governments must provide, unless they can show that
doing so would result in an undue burden or fundamental
alteration. By contrast, braille or raised character signage is
structural in nature and must be provided in existing public
accommodations facilities if it is readily achievable to do so;
further, it must be provided in new construction and, to the
maximum extent feasible, when existing facilities are altered.
The requirements for accessibility in state and local
government buildings are discussed in Part II of this
document.
Does a public accommodation have an obligation to search
for accessible space?
A public accommodation is not required to lease space that
is accessible. However, upon leasing, the barrier removal
requirements for existing facilities apply. In addition, any
alterations to the space must meet the accessibility
requirements for alterations.
What are the duties when a facility is altered?
The ADA does not require businesses to make alterations,
but when they choose to do so, alterations must be made in
a way that ensures that the altered portion is readily
accessible to and usable by individuals with disabilities, to
the maximum extent feasible.
How is "alteration" defined in the ADA?
An alteration is a remodeling, addition, or other change or
rearrangement in structural parts of a place of public
accommodation or a commercial facility that affects the
usability of the facility. The ADA rule for alterations does not
apply to normal maintenance, reroofing, painting,
wallpapering, or changes to the mechanical and electrical
systems. This rule applies only to physical alterations that
began after January 26, 1992.
What are the requirements of accessibility with respect to
existing facilities?
Existing public accommodations must remove architectural
and structural communication barriers if their removal is
readily achievable, that is, easily accomplishable and able to
be carried out without much difficulty or expense. The readily
achievable standard is flexible and depends on a number of
factors relating to the size and resources of the public
accommodation. The Justice Department regulations
indicate that the installation of braille and raised character
markings on elevators is an example of barrier removal that
will be "readily achievable" under most circumstances. If
barrier removal is not readily achievable, it is not required.
However, in such cases, the services or goods must be
made available through alternative methods, if the
alternative methods are readily achievable. An example of
an alternative method might be to provide home delivery of
dry cleaning to a blind wheelchair user who could not enter
the dry cleaning establishment because of a flight of stairs.
Existing commercial facilities (such as commercial office
buildings) are not required to remove barriers unless the
building is otherwise being altered. However, if a doctor's
office or other public accommodation rents space in the
office building, the owner of the office building, as the
landlord of a place of public accommodation, under the ADA
may have responsibilities for barrier removal.
Do the new construction and alteration requirements apply to
public accommodations and commercial facilities with a very
small number of employees, e.g., fewer than five?
Unlike the employment title of the ADA, the alterations
requirements apply to all commercial facilities and public
accommodations, regardless of the number of employees.
The smallest public accommodations do have extra time
before they can be sued for failure to provide auxiliary aids
and services or failure to make modifications to existing
facilities, but the new construction and alteration
requirements are not subject to this time-limited moratorium
on suits against small business.
What are the accessibility requirements with respect to new
construction?
This part of the law applies to places of public
accommodation and private facilities that are designed and
constructed for first occupancy after January 26, 1993, and
for which a completed application for a building permit or
permit extension was filed after January 26, 1992. Newly
constructed public accommodations and commercial
facilities must be accessible, unless it is structurally
impracticable, though this limitation would apply in very rare
circumstances. However, buildings under three stories or
under 3,000 square feet per story are not required to install
elevators, unless the building is a shopping center or mall,
the professional office of a health care provider, or a transit
terminal or depot. This so-called elevator exemption would
not excuse the owner from designing and constructing other
accessible features, such as braille or raised character
signage.
What are the standards for alterations?
When public accommodations and commercial facilities are
altered, the altered area must be made accessible, unless it
is technically infeasible. In addition, if the alteration affects
the usability of a primary functional area of the building, an
accessible path of travel to the altered area must be
provided if providing it is not disproportionate in cost and
scope--that is, if it does not cost more than 20 percent of the
cost of the alteration. If providing an accessible path of travel
to the altered area would exceed 20 percent of the alteration
cost, only 20 percent must be spent and not more.
What are the ADA Accessibility Guidelines (ADAAG)?
The ADAAG contain detailed specifications for constructing
and altering places of public accommodation to ensure,
among other things, that they are free of structural
communication barriers. The ADAAG, available as an
appendix to the Justice Department's Title III regulations,
contains several signage requirements of specific interest to
persons who are blind, deaf-blind, or visually impaired:
braille, raised characters, contrast, serif, and character
height. In addition, the ADAAG contains provisions regarding
braille and raised character elevator controls; audible
direction and floor indicators; floor designations on elevator
hoistways; protruding objects; and, in some situations,
detectable warnings. The ADAAG also contains provisions
regarding stairs and handrails. These ADAAG requirements
generally must be incorporated into new construction and
must be incorporated when facilities are being altered. Items
such as raised character and braille elevator controls are
usually required to be installed in existing facilities, because
they involve little difficulty or expense and are generally
considered to be readily achievable. The ADAAG also
contains provisions requiring accessibility of automatic teller
machines.
State and local governments may also choose to follow
ADAAG standards or the Uniform Federal Accessibility
Standards (UFAS) to meet their accessibility requirements in
new and altered facilities. It is expected that most physical
barriers will be removed over time, as new facilities are built
and existing buildings are renovated.
Section II: Title II: State and Local Government Services
Do state and local governments have a duty to notify
individuals with disabilities about their rights under Title II of
the ADA?
Yes. Title II requires state and local governments to
distribute information about their ADA duties to persons with
disabilities. For example, governments can distribute this
information to persons who are blind, deaf-blind, or visually
impaired through a variety of means, including radio
broadcasts, braille and large print, or telephone information
systems. In addition, information can also be made available
through service agencies for persons who are blind and
advocacy organizations of persons who are blind, deaf-blind,
or visually impaired.
Glenn, who is visually impaired, needs a business license to
operate his store. Is a state agency that issues such licenses
covered by the ADA?
Yes. All services, programs, or activities provided or made
available by state or local government agencies are covered
by Title II. Under the ADA, receipt of federal funds is not
required. Examples of covered activities and entities include
professional licensing, town hall meetings, state park inns,
county recreation and amusement programs and facilities,
and welfare offices. In addition, hospitals or other health care
institutions that are operated by state or local governments
are covered under Title II of the ADA. A public entity may not
discriminate on the basis of disability in contracting for the
purchase of goods or services. As a state agency, a bureau
that issues business licenses would be covered by the ADA.
Glenn needs some assistance in filling out the form
necessary to obtain the license. Can he expect that bureau
personnel will provide this assistance?
Yes, subject to the defenses of undue burden and
fundamental alteration of the program or activity in question,
accommodations may include assistance in reviewing public
documents and assistance in filling out forms for public
services or voter registration. Unlike the employment or
public accommodations titles of the ADA (Title I and III),
state and local governments covered under Title II must give
primary consideration to the accommodation chosen by the
individual with a disability. In addition, the individual's choice
of accommodation must be honored, unless the covered
entity can prove that another effective means of
communication exists or that use of the means chosen by
the individual with a disability would constitute an undue
burden or fundamental alteration of the program or activity in
question.
My county, USA, has its offices in four buildings within the
county. Must all of these buildings be equipped with braille
and raised character signage?
No. A public entity may not deny the benefits of its programs,
activities, or services to people with disabilities because its
facilities are inaccessible. A public entity's programs,
activities, and services, when viewed in their entirety, must
be readily accessible to and usable by people with
disabilities. This "program accessibility" standard applies to
all existing facilities of a public entity. Public entities,
however, are not required necessarily to make all of their
existing facilities accessible. Alternate methods of providing
program accessibility, such as providing services at another
site, assigning aides to beneficiaries, or acquiring
equipment, are permissible. Physical changes to a building
are required only when there is no other feasible way to
make the program accessible.
By contrast, structural barriers must be removed from places
of public accommodation under Title III when such removal
is "readily achievable," without regard to whether the public
accommodation's services can be made accessible through
other methods.
Thus, each of the county's buildings need not be equipped
with braille or raised character signage as long as the
county's programs, when viewed in their entirety, are
accessible to people who are blind or visually impaired.
My county, USA, plans to build a new office tower. Must it
comply with the ADAAG?
Not necessarily. All facilities designed, constructed, or
altered by, on behalf of, or for the use of a public entity must
be readily accessible to and usable by people with
disabilities. The entity may choose to adopt either the
ADAAG or the UFAS. One of these standards must be
adopted completely. A public entity may not choose ADAAG
for one floor of a building or alteration project and UFAS for
another. Major differences between the two standards are
summarized in the Department of Justice's Technical
Assistance Manual at Sec. II-6.3000. State and local
governments that choose to follow ADAAG must comply with
the guidelines for their facilities that are built or altered after
January 26, 1992.
My county, USA, plans to lease additional office space. Must
leased space comply with ADAAG?
No. Public entities are encouraged, but are not required, to
lease accessible space. Once it occupies a facility, however,
the public entity must ensure that all of its programs
conducted in that space are accessible, subject however to
the program accessibility limitations discussed above.
Section III: Title III: Public Accommodations
John, who is visually impaired, wishes to stay at a small bed
and breakfast occupied by Les Rich, its owner. It consists of
four guest rooms. Is such an establishment covered by Title
III of the ADA?
No. The bed and breakfast described above would not be
covered by the ADA since ADA excludes from coverage
owner-occupied establishments renting five or fewer rooms.
Generally, places of lodging, such as hotels, motels, and
inns, are public accommodations under the ADA.
The Good News Community Hospital is a 300-bed facility. Is
the hospital covered by the ADA?
Yes. The ADA contains a list of 12 categories of places of
public accommodation, which illustrate the wide scope of the
law's coverage. If the entity falls within one of the 12 listed
categories and is privately owned or operated, it is covered
as a place of public accommodation by the ADA. Places
such as private hospitals, nursing homes, day-care centers,
ambulatory treatment or diagnostic centers, and professional
offices of health care providers are all places of public
accommodation covered by the ADA.
Also covered are lawyers' offices, insurance offices, health
spas, auditoriums, stadiums, and lecture halls. As a rule, an
establishment is covered by Title III if it is privately owned or
operated and is a place in which consumers transact
business or visit for recreational health, or educational
purposes. In addition, publicly owned or operated facilities
such as hospitals would be subject to similar ADA
requirements under Title II.
Rose, who is visually impaired, is a member of the Good
News Community Church. Must the church provide her with
a hymnal in large print?
No. Churches and other religious organizations are exempt
from the provisions of Title III. A religious entity, however, is
subject to the employment obligations contained in Title I if it
has enough employees to meet the requirements for Title I
coverage. If a church or religious organization rents space to
a private day-care center, the religious entity remains
exempt from Title III, but the day-care center would be
covered as a place of public accommodation.
Exclusive, private clubs are also exempt from Title III
coverage, unless they rent space to a place of public
accommodation or allow the public use of any of their
facilities. Unlike churches or other religious organizations,
private clubs that rent space to places of public
accommodation do assume Title III obligations with respect
to the portion of the facilities that is rented out or used as a
place of public accommodation. If a club occasionally opens
its entire facility for a public event such as a golf tournament,
all of the facility used for the event becomes a place of public
accommodation for that event.
The Acme Wholesale Plumbing Supply Company maintains
its corporate office in the High Rent Office Tower. Is Acme a
place of public accommodation covered by Title III?
No. An office is a public accommodation only if it fits within
the 12 specific categories of public accommodations set
forth in the ADA. In the case of Acme, it does not fall into any
of the 12 categories of public accommodations listed in Title
III. In addition, Acme is not open to consumers and therefore
is not a place of public accommodation.
However, lawyers' offices, doctors' offices, and offices of
other health care providers located in the High Rent Office
Tower are clearly places of public accommodation, as
defined by the ADA. As such, they must provide auxiliary
aids or services, unless doing so would result in a
fundamental alteration or an undue burden, and must further
remove architectural and structural communication barriers if
readily achievable to do so. The Acme Wholesale Plumbing
Supply Company would be considered a commercial facility
under the ADA. An office is a commercial facility if it is in a
nonresidential facility that affects commerce. This is a very
broad category that encompasses virtually all businesses of
any kind.
The distinction between public accommodations and
commercial facilities is important because public
accommodations are subject to all of the requirements of
Title III, whereas commercial facilities are only subject to the
alteration and new construction requirements. When the
High Rent Office Tower alters its building, it must remove
structural communication barriers by incorporating
accessible features (such as accessible interior signage) in
accordance with ADAAG requirements.
In addition, if a place of public accommodation occupies
leased space in an office building, both the landlord and the
tenant are responsible to ensure that a blind, deaf-blind, or
visually impaired person has full access to the services of
the health care provider. As between the tenant and the
landlord, the parties may allocate this responsibility in their
lease agreement. For example, the landlord may assume
responsibility for the lobby, elevators, and other common
areas in the office building, while the tenant may assume
responsibility for access within his or her suite.
Mary is a parent who is blind. Her 10-year-old daughter,
Laurie, has just been taken to the Good News Community
Hospital emergency room for treatment. Is the hospital
obligated to assist Mary in completing the consent and other
forms associated with her child's admission?
Yes. In this scenario, if Mary must give informed consent for
Laurie's treatment, contents of the consent form must be
effectively communicated to her. In most cases, this can be
accomplished by having hospital staff read the consent form
or by providing the form in braille or on audiocassette. If the
form is read aloud, the hospital should take steps to ensure
that this is done in an area where privacy and confidentiality
can be maintained.
Barbara, who is deaf-blind, calls to make an appointment
with Dr. Goodhealth and asks him to arrange to have an
interpreter present during the appointment. Must the doctor
provide an interpreter?
Perhaps. Providing an interpreter is an example of an
auxiliary aid or service. Dr. Goodhealth must ensure
effective communication. Important factors in determining
whether different auxiliary aids and services are effective are
the complexity and length of the information to be
transmitted. There may be other means of providing effective
communication that the doctor prefers (such as using a
teletouch, Brailtalk, or telebraille device). If it is necessary for
effective communication to provide an interpreter, one must
be provided, unless the doctor can demonstrate that doing
so would be an undue burden, i.e., a significant difficulty or
expense. To determine if something is an undue burden, one
looks to the cost of the auxiliary aid or service in relation to
all resources available to the doctor, not just what the doctor
is paid for the deaf-blind person's appointment. The
unavailability of a tactile interpreter in some parts of the
country could also be considered in assessing undue
burden. In many cases and localities, however, providing an
interpreter is not an undue burden for a doctor. If it is
determined that providing a particular auxiliary aid or service
is an undue burden, the doctor must still provide another aid
or service or pay for the portion of the auxiliary aid or service
that does not pose an undue burden. In this case, if the
purpose of the appointment is to discuss Barbara's need for
surgery, an interpreter will almost certainly be required if it is
not an undue burden, unless some other effective means of
communication between Barbara and Dr. Goodhealth is
available.
Weighty Volumes, a local book store, customarily carries
only regular print versions of books. Peter is losing his
vision. Must Weighty Volumes stock large-print or cassette
books?
No. The ADA does not require the bookstore to expand its
inventory to include large-print books or books on audiotape.
On the other hand, a public accommodation may be required
to special order accessible goods at the request of a
customer with a disability if:
1. It makes special orders for unstocked goods in its regular
course of business and
?
2. The accessible or special goods requested can be
obtained from one of its regular suppliers.
Thus, on Peter's request, the book store may be required to
special order large-print books if the above requirements are
satisfied.
Sarah, who is visually impaired, needs assistance in locating
and removing an item from a grocery store shelf. She also
needs help reading price tag information. Does the ADA
cover this kind of assistance?
A store employee who locates the desired item for Sarah
would be providing an auxiliary aid or service. Of course, if
Sarah is unreasonably demanding or is shopping when the
store is extremely busy, it may be an undue burden to spend
extended periods of time reading price and product
information.
The Textile Arts Museum does not allow visitors to touch
exhibits because handling some objects can result in
damage. The museum offers a special tour for persons who
are blind during which certain objects can be touched on a
limited basis. Does this special tour violate the ADA?
No. A public accommodation may offer separate or special
programs necessary to provide individuals with disabilities
an equal opportunity to benefit from their programs.
However, such programs must be specifically designed to
meet the needs of the individuals with disabilities for whom
they are provided. The museum cannot exclude a person
who is blind from the standard museum tour. Individuals with
disabilities are entitled to participate in regular programs,
even if the public accommodation could reasonably believe
that they cannot benefit from the regular program. A public
accommodation cannot force an individual with a disability to
accept an accommodation, aid, or service that he or she
does not want.
Jack, who is a dog guide user, and his brother Mark want to
see the latest Tom Cruise movie at the First Run Theater.
The theater refuses to admit Jack with his dog guide. Has
the ADA been violated?
The First Run Theater has violated the ADA. First, places of
public accommodation are required to modify their policies to
permit the use of a service animal by an individual with a
disability, unless so doing results in a fundamental alteration
or jeopardizes safe operation of the public accommodation.
Since John's dog is presumably well-trained and is kept
under control by his master, the theater will not be able to
deny John admission with his dog guide. In addition, Mark,
who is sighted, also has a claim of discrimination under the
ADA against the theater, based upon his association with
John. In addition to familial relationships, the prohibition
against discrimination because of association with an
individual who has a disability covers any type of
association.
The Blue Plate restaurant has an unofficial policy of seating
customers who are deaf-blind in a separate dining room
because the management fears that other customers will be
uncomfortable if such individuals are seated in the
restaurant's main dining room. Has the ADA been violated?
Yes. The Blue Plate's policy violates the ADA because it
establishes an eligibility criterion that discriminates against
individuals with certain disabilities and that is not necessary
for the operation of the restaurant. The restaurant may not
justify its policy on the basis of the preferences of its other
customers.
The Queen of the Caribbean, a cruise ship subject to the
ADA, discovers that Marilyn, who is totally blind, has made a
reservation and plans to travel independently. The Sailaway
Cruise Ship Line advises Marilyn that, for liability reasons,
she must bring a sighted traveling companion with her. Has
the ADA been violated?
Yes. Requiring a traveling companion as an eligibility
criterion violates the ADA, unless the cruise line
demonstrates that its policy is necessary for some
compelling reason.
The Sleepy Hollow Summer Camp, a private facility, requires
parents of children to fill out a questionnaire and to submit
medical documentation regarding their children's ability to
participate in various camp activities. Is such a requirement
lawful under the ADA?
Yes. The questionnaire is acceptable if the summer camp
can demonstrate that each piece of information requested is
needed to ensure safe participation in camp activities. The
camp, however, may not use this information to screen out
children with disabilities (including children who are blind,
deaf-blind, or visually impaired) from admittance to the
camp. In addition, the camp may not make any additional
charge for accommodations, aids, or services that the camp
might be required to provide to the child with a disability.
Jim, who is deaf-blind, initially visits a doctor who specializes
in family medicine. The doctor discovers that Jim has a
potentially cancerous growth. May the doctor refuse to treat
Jim?
No. A doctor cannot refuse to treat him based upon his deaf-
blindness. However, if Jim has a condition that the doctor
does not have expertise to treat, he can be referred to a
specialist. The cancer specialist who receives the referral
may not refuse to treat Jim for cancer-related problems
simply because of his disability or because the physician is
unwilling to pay for a qualified interpreter.
Mary is a visually impaired person. She enjoys piano bars,
and has asked the proprietor of the Steinway Getaway to
raise the lighting in the bar so that she can read the cocktail
menu. Must the bar owner provide this accommodation?
Probably not. The issue posed by this question is whether
raising the lighting in the bar would pose an undue burden or
would fundamentally alter the activities conducted there. If
low lighting is part of the ambience of the establishment,
raising the illumination level probably would constitute a
"fundamental alteration" and would not be required. The bar
owner would, however, be required to have a server read the
menu to Mary and would also be required to provide her with
a choice of seating where the lighting might be more
adequate for her needs.
The Gotham Opera Company, a touring opera troupe, is
renting space at a private performing arts center for three
weeks. An individual who is blind calls the center and finds
that no provision has been made for audio description or a
braille or large-print program because the troupe's budget is
too small. Has the ADA been violated?
Probably. As a place of entertainment or public gathering,
the private performing arts center is a public
accommodation. Further, the opera troupe is also a public
accommodation for the duration of the lease with the
performing arts center, because it is leasing a place of public
accommodation. Both of these public accommodations have
the ultimate responsibility to provide auxiliary aids and
services, such as programs in large print or braille and audio
description, unless it is an undue burden to do so.
An important question is whether the opera company or the
performing arts center must provide the auxiliary aid.
Although both the arts center and the troupe remain
obligated to provide the audio description or braille or large-
print program to the operagoer who is blind, a lease or other
contract may allocate responsibility between the two parties.
In this scenario, the arts center would be required to supply
the braille or large-print program, even if the lease with the
troupe contained a provision requiring the troupe to provide
this service. Depending upon the lease provisions, the arts
center could recover damages against the troupe for its
failure to perform under the lease. Note that if the space
were donated to the opera troupe, the troupe would not be
liable to provide audio description or a braille or large-print
program, because in this case, it is not a public
accommodation within the meaning of the ADA.
The Numismatic Society of East Hardwicke sponsors a
course on rare foreign coins in preparation for a foreign
currency exchange licensing examination. A visually
impaired person wants to take the course and requests
handouts in large print, but the society refuses. Has it
violated the ADA?
The Numismatic Society may have violated the ADA,
because the course is being offered in relation to a trade
license. In such situations, auxiliary aids and services, such
as large-print handouts must be provided if it is not an undue
burden to do so. In addition, examinations of a licensing
authority must be given in an accessible manner, which can
mean the provision of readers or of braille, taped, or large-
print materials.
Section IV: Filing Complaints and Remedies for Violation of
the ADA
How does a person who is blind, deaf-blind, or visually
impaired file a complaint against a state or local government
under Title II?
Title II requires local governments with 50 or more
employees to have a grievance procedure to resolve Title II
complaints. In addition, individuals may file complaints with
the U.S. Department of Justice or with one of eight other
designated federal agencies responsible for enforcing
different subject areas of Title II. Individuals may also bring a
lawsuit in federal court. Damages are limited to injunctive
relief, but a recent United States Supreme Court case may
be interpreted by the courts to permit compensatory
damages in cases of intentional discrimination. Attorney's
fees and court costs may be awarded to the prevailing party
at the court's discretion.
How does a person who is blind, deaf-blind, or visually
impaired file a complaint against a place of public
accommodation under Title III?
An individual may file a lawsuit to get a court order to stop
discrimination. Lawsuits are limited to "preventive" relief. No
money damages are available, but a reasonable attorney's
fee may be awarded. To give them some time to come into
compliance, certain small businesses (those with 10 or fewer
employees and gross receipts of $500,000 or less) may not
be sued until after January 26, 1993.
Individuals may also file complaints with the Attorney
General, U.S. Department of Justice, asking the Attorney
General to investigate the complaint. The Attorney General
is authorized to investigate complaints and to bring lawsuits
in cases of general public importance or when there is a
"pattern or practice" of discrimination. In suits brought by the
Attorney General, money damages and civil penalties may
be awarded (but not punitive damages). Civil penalties may
not exceed $50,000 for a first violation or $100,000 for any
later violation. Attorney's fees and court costs may be
awarded within the discretion of the court. As always, state
law should be consulted to determine the availability of other
or more generous remedies.
The ADA does recognize that alternative dispute resolution
techniques (including arbitration or mediation) can be an
effective way of resolving disputes concerning the provision
of auxiliary aids or services. Utilizing these techniques is
very important and will be advantageous to both sides in
helping to resolve ADA complaints with minimal cost and
delay.
As a person who is visually impaired and familiar with the
ADA, how can I assist public accommodations or state and
local governments to comply with the ADA voluntarily?
State and local governments under Title II are required to
conduct self-evaluations to determine whether all of their
programs or activities comply with the ADA. However, the
law does not require places of public accommodation to
conduct self-evaluations or to develop barrier removal plans.
In any event, a self-evaluation and a barrier removal plan are
the easiest ways to determine how accessible a place of
public accommodation is now and the progress which needs
to be made in the future. You can assist a place of public
accommodation conduct a self-evaluation.
In addition to this document, two accessibility checklists
targeted to the hotel industry and the health care industry
have been developed to help you identify barriers and arrive
at solutions of particular concern to persons who are blind,
deaf-blind, or visually impaired. The process begins by
identifying barriers to access within each function or
department of government or a private business covered by
Title III. Determine how the barrier is currently being
addressed, if at all, and then identify the range of solutions
available which will eliminate or minimize the barrier. Is the
current response to the barrier adequate, or must the
covered entity do more? Which solutions to removing the
barrier are effective, least expensive, or easiest to
implement? The ADA permits a state or local government or
place of public accommodation to choose among competing
methods of barrier removal, as long as the method chosen is
effective. The least expensive solution, as long as it is
effective, is perfectly okay.
Once barriers are identified and solutions determined, a plan
for ADA implementation should be developed. If time frames
are reasonable and solutions effective, a good faith effort to
comply with the ADA will be an important favorable factor in
any proceeding to adjudicate a complaint under the ADA.
As a person who is blind and who is familiar with ADA
requirements, you can help covered entities to comply with
the ADA by showing them how to identify barriers and arrive
at cost effective solutions to those barriers. If you want to get
involved, a good place to start is one of the organizations or
federal departments or agencies shown in the resource list.

Resources
Government Agencies
You can obtain further information, copies of the ADA
regulations, and technical assistance manuals from the
following government departments or agencies:
Title I (Employment)
Equal Employment Opportunity Commission
1801 L Street, N.W.
Washington, DC 20507
800-669-EEOC; 202-663-4399 (TDD)
?http://www.eeoc.gov/facts/howtofil.html
Title II (State and Local Governments); Title III (Public
Accommodations)
Civil Rights Division
Disability Rights Section
U.S. Department of Justice
P.O. Box 66738
Washington, DC 20035-9998
202-514-0301; 202-514-0383 (TDD)
http://www.usdoj.gov/crt/ada/adahom1.htm
Title II/Title III (Transportation)
US Department of Transportation
400 Seventh Street, S.W., #10424
Washington, DC 20590
202-366-9306; 202-755-7687 (TDD)
?http://www.fta.dot.gov/office/civil/
Advocacy Organizations
You can obtain further information about accommodations
for people who are blind, deaf-blind, or visually impaired
from the following organizations:
American Association of the Deaf-Blind
814 Thayer Avenue
Silver Spring, MD 20910
301-459-2121 (Voice); 301-588-6545 (TDD)
American Council of the Blind
1155 15th Street, N.W., Suite 1004
Washington, DC 20005
202-467-5081 (Voice)
info@acb.org
http://www.acb.org
American Foundation for the Blind
Governmental Relations Group
820 First Street, N.E., Suite 400
Washington, DC 20002
202-408-0200 (Voice/TDD)
afbgov@afb.net
AFB Governmental and Advocacy Activities
Council of Citizens with Low Vision International
5707 Brockton Drive #302
Indianapolis, IN 46220
800-733-2258 (Voice); 317-254-1185 (Voice)
http://www.cclvi.org
National Federation of the Blind
1800 Johnson Street
Baltimore, MD 21230
410-659-9314 (Voice)
epc@roudley.com
http://www.nfb.org
This document provides general information to promote
voluntary compliance with the Americans with Disabilities Act
(ADA). It was prepared under a grant from the U.S.
Department of Justice. While the Department's Public
Access Section has reviewed its contents, any opinions or
interpretations in this document are those of the American
Foundation for the Blind and do not necessarily reflect the
views of the Department of Justice. The ADA itself and the
Department's ADA regulations should be consulted for
further, more specific guidance.
The Americans with Disabilities Act Communications
Accommodations Project was a joint program of the
American Foundation for the Blind and the National Center
for Law and Deafness.


Published: 07/31/00
For more information please contact American Foundation
for the Blind,
via e-mail: afbinfo@afb.net
Or use traditional mail services:
American Foundation for the Blind
11 Penn Plaza
Suite 300
New York, NY, 10001, USA

Provided by:
Pacific ADA & IT Center (PACIFIC DBTAC)
555 12th Street, Suite 1030
Oakland, CA 94607-4046
Technical Assistance Hotline: 1-800-949-4232
Email: adatech@adapacific.com

								
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