Disability Law Index - Public Accommodations: Readily Achievable Barrier Removal

Statute:

42 U.S.C. § 12182(b)(2)(A) - Prohibition of discrimination by public accommodations

For purposes of subsection (a) of this section, discrimination includes -

(iv) a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, and transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals (not including barriers that can only be removed through the retrofitting of vehicles or rail passenger cars by the installation of a hydraulic or other lift), where such removal is readily achievable; and (v) where an entity can demonstrate that the removal of a barrier under clause

(iv) is not readily achievable, a failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable.

42 U.S.C. § 12181(9) - Definition - Readily achievable. See also 28 C.F.R. § 36.104.

The term readily achievable means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include -

(A) the nature and cost of the action needed under this chapter;

(B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility;

(C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

(D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.

Regulation:

28 C.F.R. § 36.304 - Removal of barriers

(a) General - A public accommodation shall remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense.

(b) Examples - Examples of steps to remove barriers include, but are not limited to, the following actions--

(1) Installing ramps;
(2) Making curb cuts in sidewalks and entrances;
(3) Repositioning shelves;
(4) Rearranging tables, chairs, vending machines, display racks, and other furniture;
(5) Repositioning telephones;
(6) Adding raised markings on elevator control buttons;
(7) Installing flashing alarm lights;
(8) Widening doors;
(9) Installing offset hinges to widen doorways;
(10) Eliminating a turnstile or providing an alternative accessible path;
(11) Installing accessible door hardware;
(12) Installing grab bars in toilet stalls;
(13) Rearranging toilet partitions to increase maneuvering space;
(14) Insulating lavatory pipes under sinks to prevent burns;
(15) Installing a raised toilet seat;
(16) Installing a full-length bathroom mirror;
(17) Repositioning the paper towel dispenser in a bathroom;
(18) Creating designated accessible parking spaces;
(19) Installing an accessible paper cup dispenser at an existing inaccessible water fountain;
(20) Removing high pile, low density carpeting; or
(21) Installing vehicle hand controls.

(c) Priorities - A public accommodation is urged to take measures to comply with the barrier removal requirements of this section in accordance with the following order of priorities.

(1) First, a public accommodation should take measures to provide access to a place of public accommodation from public sidewalks, parking, or public transportation. These measures include, for example, installing an entrance ramp, widening entrances, and providing accessible parking spaces.

(2) Second, a public accommodation should take measures to provide access to those areas of a place of public accommodation where goods and services are made available to the public. These measures include, for example, adjusting the layout of display racks, rearranging tables, providing Brailled and raised character signage, widening doors, providing visual alarms, and installing ramps.

(3) Third, a public accommodation should take measures to provide access to restroom facilities. These measures include, for example, removal of obstructing furniture or vending machines, widening of doors, installation of ramps, providing accessible signage, widening of toilet stalls, and installation of grab bars.

(4) Fourth, a public accommodation should take any other measures necessary to provide access to the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.

(d) Relationship to alterations requirements of subpart D of this part

(1) Except as provided in paragraph (d)(2) of this section, measures taken to comply with the barrier removal requirements of this section shall comply with the applicable requirements for alterations in 36.402 and 36.404-36.406 of this part for the element being altered. The path of travel requirements of 36.403 shall not apply to measures taken solely to comply with the barrier removal requirements of this section.

(2)

(i) Safe harbor. Elements that have not been altered in existing facilities on or after March 15, 2012,and that comply with the corresponding technical and scoping specifications for those elements in the 1991 Standards are not required to be modified in order to comply with the requirements set forth in the 2010 Standards.

(ii)

    (A) Before March 15, 2012, elements in existing facilities that do not comply with the corresponding technical and scoping specifications for those elements in the 1991 Standards must be modified to the extent readily achievable to comply with either the 1991 Standards or the 2010 Standards. Noncomplying newly constructed and altered elements may also be subject to the requirements of § 36.406(a)(5).

    (B) On or after March 15, 2012, elements in existing facilities that do not comply with the corresponding technical and scoping specifications for those elements in the 1991 Standards must be modified to the extent readily achievable to comply with the requirements set forth in the 2010 Standards. Noncomplying newly constructed and altered elements may also be subject to the requirements of § 36.406(a)(5).

(iii) The safe harbor provided in § 36.304(d)(2)(i) does not apply to those elements in existing facilities that are subject to supplemental requirements (i.e., elements for which there are neither technical nor scoping specifications in the 1991 Standards), and therefore those elements must be modified to the extent readily achievable to comply with the 2010 Standards. Noncomplying newly constructed and altered elements may also be subject to the requirements of § 36.406(a)(5). Elements in the 2010 Standards not eligible for the element-by-element safe harbor are identified as follows –

    (A) Residential facilities and dwelling units, sections 233 and 809.

    (B) Amusement rides, sections 234 and 1002; 206.2.9; 216.12.

    (C) Recreational boating facilities, sections 235 and 1003; 206.2.10.

    (D) Exercise machines and equipment, sections 236 and 1004; 206.2.13.

    (E) Fishing piers and platforms, sections 237 and 1005; 206.2.14.

    (F) Golf facilities, sections 238 and 1006; 206.2.15.

    (G) Miniature golf facilities, sections 239 and 1007; 206.2.16.

    (H) Play areas, sections 240 and 1008; 206.2.17.

    (I) Saunas and steam rooms, sections 241 and 612.

    (J) Swimming pools, wading pools, and spas, sections 242 and 1009.

    (K) Shooting facilities with firing positions, sections 243 and 1010.

    (L) Miscellaneous.

    (1) Team or player seating, section 221.2.1.4.

    (2) Accessible route to bowling lanes, section 206.2.11.

    (3) Accessible route in court sports facilities, section 206.2.12.

Appendix to § 36.304(d)
Compliance Dates and Applicable Standards for Barrier Removal and Safe Harbor
Date Requirement Applicable Standards
Before March 15, 2012

Elements that do not comply with the requirements for those elements in the 1991 Standards must be modified to the extent readily achievable.

Note: Noncomplying newly constructed and altered elements may also be subject to the requirements of § 36.406(a)(5).

1991 Standards or 2010 Standards
On or after March 15, 2012

Elements that do not comply with the requirements for those elements in the 1991 Standards or that do not comply with the supplemental requirements (i.e., elements for which there are neither technical nor scoping specifications in the 1991 Standards) must be modified to the extent readily achievable.

Note: Noncomplying newly constructed and altered elements may also be subject to the requirements of § 36.406(a)(5).

2010 Standards
Elements not altered afterMarch 15, 2012 Elements that comply with the requirements for those elements in the 1991 Standards do not need to be modified. Safe Harbor

(3) If, as a result of compliance with the alterations requirements specified in paragraph (d)(1) and (d)(2) of this section, the measures required to remove a barrier would not be readily achievable, a public accommodation may take other readily achievable measures to remove the barrier that do not fully comply with the specified requirements. Such measures include, for example, providing a ramp with a steeper slope or widening a doorway to a narrower width than that mandated by the alterations requirements. No measure shall be taken, however, that poses a significant risk to the health or safety of individuals with disabilities or others.

(e) Portable ramps. Portable ramps should be used to comply with this section only when installation of a permanent ramp is not readily achievable. In order to avoid any significant risk to the health or safety of individuals with disabilities or others in using portable ramps, due consideration shall be given to safety features such as nonslip surfaces, railings, anchoring, and strength of materials.

(f) Selling or serving space. The rearrangement of temporary or movable structures, such as furniture, equipment, and display racks is not readily achievable to the extent that it results in a significant loss of selling or serving space.

(g) Limitation on barrier removal obligations.

(1) The requirements for barrier removal under § 36.304 shall not be interpreted to exceed the standards for alterations in subpart D of this part.

(2) To the extent that relevant standards for alterations are not provided in subpart D of this part, then the requirements of § 36.304 shall not be interpreted to exceed the standards for new construction in subpart D of this part.

(3) This section does not apply to rolling stock and other conveyances to the extent that § 36.310 applies to rolling stock and other conveyances.

(4) This requirement does not apply to guest rooms in existing facilities that are places of lodging where the guest rooms are not owned by the entity that owns, leases, or operates the overall facility and the physical features of the guest room interiors are controlled by their individual owners.

Case Law:

Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119 (2005).

  • "Title III does not define “difficulty” ... but use of the disjunctive-“easily accomplishable and able to be carried out without much difficulty or expense”-indicates that it extends to considerations in addition to cost."
  • A barrier removal that would bring a vessel into noncompliance any international legal obligation, would create serious difficulties for the vessel and would have a substantial impact on its operation, and thus would not be “readily achievable.”
  • A structural modification is not readily achievable if it would pose a direct threat to the health or safety of others.

Doran v. 7-Eleven Inc., 524 F.3d 1034 (9th Cir. 2008).

  • Once a Title III plaintiff has established that he has standing to sue with respect to one barrier, he or she may conduct discovery to determine what, if any, other barriers affecting his or her disability existed at the time he or she brought the claim.

Molski v. Foley Estates Vineyard and Winery, LLC, 531 F.3d 1043 (9th Cir. 2008).

  • Wheelchair user sued winery because it had refused to remove barriers in a historic building.
  • Winery had duty to remove barriers inside the building even though the outside barrier removal, an external ramp leading into the building, may not be readily achievable.
  • "The inaccessibility of entry to one group of individuals does not justify retaining barriers to access inside the building for all others who may safely gain entry. Where readily achievable, the interior of the building must be made accessible for all who may enter."

Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269 (11th Cir 2006).

  • In the context of an historic building, “barrier removal would not be considered ‘readily achievable’ if it would threaten or destroy the historic significance of the building.

Colorado Cross Disability Coalition v. Hermanson Family Ltd. Partnership, 264 F.3d 999 (10th Cir. 2001).

  • Plaintiff must initially present evidence tending to show that the suggested method of barrier removal is readily achievable under the particular circumstances.
  • If Plaintiff does so, Defendant then bears the ultimate burden of persuasion that barrier removal is not readily achievable.

Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000).

  • The term, readily achievable, is not unconstitutionally vague. Taken together with administrative regulations and interpretations, the term is sufficiently specific to put the owner of a public accommodation on notice of what is required by Title III.

First Bank Nat. Ass'n v. F.D.I.C., 79 F.3d 362 (3rd Cir. 1996).

  • In considering what is “readily achievable” with respect to removal of architectural barriers, the “readily achievable” standard necessarily includes a temporal element.
  • What is easy to accomplish in one year may not be easily accomplishable in one day so a determination of what is “readily achievable” depends upon the passage of time.

Hubbard v. 7-Eleven, Inc., 433 F.Supp.2d 1134 (S.D. Cal. 2006).

  • Although the ADAAG guidelines do not apply to facilities existing before the ADA's effective date, they “provide valuable guidance for determining whether an existing facility contains architectural barriers".

Grove v. De La Cruz, 407 F.Supp.2d 1126 (C.D. Cal. 2005).

  • Proposed barrier removal was readily achievable even if lease agreement between tenants and lessors prohibited tenants from making physical alterations to the property.
  • A landlord and tenant are permitted to allocate responsibility for compliance with the ADA by lease, but such allocation is effective only “[a]s between the parties. Provisions of lease had no affect on tenants' obligations to patron and other members of the disabled community.

Access Now, Inc. v. South Florida Stadium Corp., 161 F.Supp.2d 1357 (S.D.Fla. 2001).

  • The ADA does not require ADAAG compliance of existing facilities; accordingly, the court could not determine the defendants' liability from finding that elements of the stadium deviated from those standards.
  • The ADAAG nevertheless provide “valuable guidance” for determining whether an existing facility contains architectural barriers. A finding of noncompliance is not tantamount to finding an ADA violation; plaintiff carries the additional burden of showing that removal of the barriers is readily achievable.