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

Section 36.406(c) Places of Lodging (Section-by-Section Analysis)

The Department is proposing to add a new § 36.406(c) to clarify the scope of coverage for places of lodging.  For many years the Department has received inquiries from members of the public seeking clarification of ADA coverage of rental accommodations in time-shares, condominium hotels, and mixed-use and corporate hotel facilities that operate as places of lodging (as that term is now defined in § 36.104). This section proposes to address the treatment of these hotel-like facilities that have attributes of both residential dwellings and transient lodging facilities.  These hybrid facilities have become increasingly popular since the ADA's enactment in 1990 and make up the majority of new hotel construction in some vacation destinations.  The hybrid residential and lodging characteristics of these new types of facilities complicate determinations of ADA coverage, prompting questions from both industry and individuals with disabilities. While the Department has interpreted the ADA to encompass these hotel-like facilities when they are used to provide transient lodging, the regulation has not specifically addressed them.  Therefore, the Department is proposing a new § 36.406(c), entitled, "Places of lodging," which clarifies that places of lodging including time-shares, condominium hotels, and mixed-use and corporate hotel facilities shall comply with the provisions of the proposed standards, including but not limited to the requirements for transient lodging in sections 224 and 806 of the 2004 ADAAG.

The proposed rule, in the definitions section, clarifies that a covered "place of lodging" is a facility that provides guest rooms for sleeping for stays that are primarily short-term in nature (generally two weeks or less), to which the occupant does not have the right or intent to return to a specific room or unit after the conclusion of his or her stay, and which operates under conditions and with amenities similar to a hotel, motel, or inn, particularly including factors such as:  (1) An on-site proprietor and reservations desk; (2) rooms available on a walk-up basis; (3) linen service; and (4) a policy of accepting reservations for a room type without guaranteeing a particular unit or room until check-in, without a prior lease or security deposit.  Time-shares and condominiums or corporate hotels that do not meet this definition will not be covered by § 36.406(c) of the proposed regulation, but will likely be covered by the requirements of the Fair Housing Act, 42 U.S.C. 3601 et seq.  The Department is seeking public input on this proposal.

Question 51:  The Department requests comments on determining the appropriate basis for scoping for a time-share or condominium-hotel.  Is it the total number of units in the facility, or some smaller number, such as the number of units participating in the rental program, or the number of units expected to be available for rent on an average night the most appropriate measure?

Question 52:  The Department's proposed definition of "place of lodging" includes facilities that are primarily short-term in nature, i.e., two weeks or less in duration.  Is "two weeks or less" the appropriate dividing line between transient and residential use?  Is thirty days a more appropriate dividing line?

Question 53:  The Department believes that the scoping and technical requirements for transient lodging, rather than those for residential dwelling units, should apply to these places of lodging.  Is this the most appropriate choice?

Question 54:  How should the Department's regulation provide for a situation in which a new or converted facility constructs the required number of accessible units, but the owners of those units choose not to participate in the rental program? Does the facility have an obligation to encourage or require owners of accessible units to participate in the rental program?  Does the facility developer, the condominium association, or the hotel operator have an obligation to retain ownership or control over a certain number of accessible units to avoid this problem?

Question 55:  How should the Department's regulation establish the scoping for a time-share or condominium-rental facility that decides, after the sale of units to individual owners, to begin a rental program that qualifies the facility as a place of lodging?  How should the condominium association, operator, or developer determine which units to make accessible?