Is an association clubhouse subject to the Americans with Disabilities Act?

The Community Association Network has a Daily News weblog feed that reports on news relating to community associations. Today, it referenced a Sun-Sentinel story about two disabled people suing their association for having an inaccessible clubhouse. The South Florida newspaper reported that John Garon and Vatrice Rivera, who use wheelchairs, claim that they are unable to properly use the parking lot, bathrooms and water fountains in their community's clubhouse. They have filed suit claiming that because the clubhouse is open to the public for political debates and some entertainment, the building must comply with the federal Americans with Disabilities Act ("ADA").

There are two federal laws that may impose disability access requirements on community associations. The Federal Fair Housing Act and the ADA. The Federal Fair Housing Act is intended to apply to residential situations while the ADA is intended to apply to most commercial operations open to the public (sometimes referred to as public accommodations). The main difference between the two Acts is that those covered by the ADA are required to make the facilities of the public accommodations accessible to the disabled if it is readily achievable while the Fair Housing Act requires the housing provider to permit a disabled individual to make reasonable modifications to the project at the disabled individual's expense. In other words, whether the ADA or the Federal Fair Housing Act applies to a project is important because it determines who pays for the cost of eliminating barriers to the disabled.

If a condominium or planned community is purely residential, the ADA does not apply. However, if the condominium or planned community contains commercial uses, the Americans with Disabilities may apply at least to the extent that the commercial uses fall within the ADA and the common area is open to the customers of the commercial establishment. In the case of a residential project that opens its amenities to the general public, the analysis is a little more involved. If the amenity is open only to the residents and their guests, the ADA does not apply. Federal Regulations (28 CFR § 36.102(e)) states that the ADA does not apply to private clubs, but will apply to the facilities of a private club that is made available to customers of a public accommodation. Appendix B to the Federal Regulations states that:

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.

Therefore, a factor in the analysis is whether the association charged for the use of the premises. Even if an association does not charge for the use of its amenities, it may wish to limit access to residents and their guests to avoid a claim that they must undertake modifications to the amenities to comply with the ADA.