28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

Scope of coverage. (Section-by-Section Analysis)

As illustrated by the above discussion, the 2004 ADAAG introduces supplemental scoping and technical requirements for play areas and recreation facilities that apply to elements and spaces--e.g., playgrounds and swimming pools--that are found in a variety of different types of facilities.  In light of these supplemental requirements and their potentially wide-ranging application, the Department wishes to emphasize that the types of private entities covered under title III are unchanged by the proposed rule, and to reiterate the criteria that determine whether an entity is exempt from coverage under the ADA.  In addition, the Department notes that certain types of facilities, while they may be exempt from the coverage of the ADA, may nonetheless be subject to the accessibility requirements of other federal laws.

Private clubs (e.g., country clubs and civic organizations) are generally exempt from title III. Under the ADA, the definition of a private club is based on title II of the Civil Rights Act of 1964 and related case law.  Generally, entities are considered private clubs where members exercise a high degree of control over club operations; the membership selection is highly selective; substantial membership fees are charged; the entity is operated on a nonprofit basis; and the club was not founded specifically to avoid compliance with federal civil rights laws.  For example, a country club may qualify as a private club and have a golf course on its grounds.  If the golf course is for the exclusive use of club members and their guests, the golf course is not a public accommodation covered by title III.  However, if the country club allows nonmembers to pay a fee to play golf, the golf course is a public accommodation and is subject to title III.  The country club's other operations and facilities, however, would remain exempt if they were exclusive to members.

Religious organizations and entities controlled by religious organizations, including places of worship, are also exempt from the coverage of title III.  This exemption is intended to have a broad application and covers all of the activities of a religious entity, whether they are religious or secular.  For example, a religious organization that operates a child care facility that includes a playground, even if the child care facility is open to nonmembers, is exempt from the requirements of the ADA despite the fact that the facility would otherwise qualify as a public accommodation under title III.  However, it should be noted that religious organizations that receive federal financial assistance are not exempt from the responsibility to comply with the requirements of section 504 or any other applicable federal statute that prohibits discrimination on the basis of disability in federally assisted programs.

Finally, facilities governed by homeowners associations or similar organizations may be covered by the Fair Housing Act (FHA) and subject to HUD's jurisdiction, rather than title III of the ADA, or they may be covered by both the FHA and title III.  The distinguishing feature is whether use of the facilities in question is limited exclusively to owners, residents, and their guests, or if the facilities are made available to the public.  For example, a development governed by a homeowners association that includes a swimming pool may be covered by the FHA only, or both the FHA and the ADA.  The residences and other areas provided for the exclusive use of residents and their guests are covered by the FHA.  If the swimming pool is available only to residents and their guests, it would be covered by the FHA only.  However, if the pool is also available to members of the public who buy pool memberships, the pool would qualify as a public accommodation and would be subject to the requirements of title III.