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.

What is the Americans with Disabiities Act?

The Americans with Disabilities Act ("ADA") is a federal law that provides protections to people with disabilities. One part of the ADA provides protections for employees of employers with more than 15 employees. Other parts of the ADA applies to state and local government and transportation systems. Title III of the ADA applies to public accommodations and is usually the section of the ADA that community associations have questions about.

Public accommodations under the ADA are:

1. An inn, hotel, motel, or other place of lodging . . .


2. A restaurant, bar, or other establishment serving food or drink;


3. A . . . theater . . . or other place of exhibition or entertainment;


4. An auditorium . . . 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 . . . station used for specified public transportation;


8. A museum . . . or other place of public display or collection


9. A park, zoo . . . or other place of recreation;


10. A . . . place of education;


11. A day care center . . . or other social service center establishment;


12. A gymnasium . . . or other place of exercise or recreation.

If the business does not fall within one of the 12 categories, the ADA does not apply. However, the types of businesses within the 12 categories are illustrative. For instance, just because a service establishment is not listed under item six does not mean that it is not covered by the ADA.

If the business is a public accommodation, it has two major obligations under Title III of the ADA: (a) make reasonable accommodations in policies, practices or procedures when it's necessary to afford the goods, services, facilities, privileges, advantages or accommodations to individuals with disabilities; and (b) remove barriers to disabled persons in the areas open to the general public at its own cost if the removal is readily achievable. Under the ADA, both the public accommodation and the landlord have obligations to remove barriers.

HUD adopts Safe Harbour for Accessibility Provisions of Federal Fair Housing Act

On February 28, 2005, the Department of Housing and Urban Development ("HUD") published it's final report on the 2003 Uniform Building Code ("UBC"). By this action, HUD has said that if construction complies with the 2003 UBC, it will not be in violation of the accessibility requirements of the Federal Fair Housing Act. In order to obtain the "safe harbour" status for the UBC, the International Code Council (drafters of the UBC) agreed with HUD's interpretation that the UBC requires an accessible pedestrian route from site arrival points to accessible building entrances, unless site impracticality applies, along with two other relatively minor points. Since the UBC is used in many western states, including Hawaii, the safe harbour simplifies compliance with the accessibility requirements of the Federal Fair Housing Act.

The Federal Fair Housing Act ("FHA") includes provisions for accessibility for disabled individuals in new construction. The FHA requires the following for new construction:

1. the public use and common use portions of the dwellings must be readily accessible to and usable by disabled individuals;


2. the doors are designed to allow passage into and within the dwelling to a wheelchair; and


3. the dwellings contain certain features of "Adaptive Design".

Adaptive Design is a concept that was developed by Barrier Free Environments, Inc. in a technical manual for HUD called Adaptable Housing. The only features of adaptive design required by the FHA (42 U.S.C. 3604(f)(3)) are:

1. accessible route into and through the dwelling;


2. light, switches, electrical outlets and environmental controls in accessible locations;


3. reinforcements in bathroom walls to allow later installation of grab bars; and


4. usable kitchens and bathrooms such that an individual in a wheelchair can maneuver).

The statute (42 U.S.C. 3604(f)(4)) itself contains a safe harbor which permits projects to meet these three requirements by complying with ANSI A117.1. The addition of the 2003 version of the UBC adds a second safe harbour for the accessibility requirements for new construction.