III−1.1000 General. Title III of the ADA covers --
1) Places of public accommodation;
2) Commercial facilities; and
3) Examinations and courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes.
The obligations of title III only extend to private entities. State and local government entities are public entities covered by title II of the ADA, not by title III.
Title III also covers private entities primarily engaged in transporting people. The Department of Transportation has issued regulations implementing that section of title III.
Is the Federal Government covered by title III because it is not a "public entity" under title II? The operations of the executive branch of the Federal Government are not covered by title III of the ADA. They are covered, however, by sections 501 and 504 of the Rehabilitation Act of 1973, as amended, which prohibit disability discrimination in programs and activities conducted by Federal Executive agencies or the United States Postal Service, and by the Architectural Barriers Act, which requires that the design, construction, and alteration of Federal buildings be done in an accessible manner. The activities of the legislative branch, including Congress, on the other hand, are covered under title V of the ADA.
Are places of public accommodation and commercial facilities subject to the same requirements? No. Both places of public accommodation and commercial facilities (which include many facilities that are not places of public accommodation) are subject to the title III requirements for new construction and alterations. In addition to these requirements, places of public accommodation must be operated in accordance with the full range of title III requirements, such as nondiscriminatory eligibility criteria; reasonable modifications in policies, practices, and procedures; provision of auxiliary aids; and removal of barriers in existing facilities.
Are continuing education courses sponsored by a State bar association subject to title III? Yes. Continuing education courses sponsored by a State bar association are related to licensing, certification, and credentialing of attorneys, and therefore are covered by title III's special requirements for certain examinations and courses, whether or not they are mandatory. Independent of these requirements, if a continuing education course is offered by a private entity that owns, operates, leases, or leases to a place of public accommodation, the entity offering that course would have to meet all of the requirements generally applicable to public accommodations.
III−1.2000 Public accommodations. The broad range of title III obligations relating to "places of public accommodation" must be met by entities that the Department of Justice regulation labels as "public accommodations. " In order to be considered a public accommodation with title III obligations, an entity must be private and it must --
Own;
Lease;
Lease to; or
Operate
a place of public accommodation.
What is a place of public accommodation? A place of public accommodation is a facility whose operations --
Affect commerce; and
Fall within at least one of the following 12 categories:
1) Places of lodging (e.g. , inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms);
2) Establishments serving food or drink (e.g. , restaurants and bars);
3) Places of exhibition or entertainment (e.g. , motion picture houses, theaters concert halls, stadiums);
4) Places of public gathering (e.g. , auditoriums, convention centers, lecture halls);
5) Sales or rental establishments (e.g. , bakeries, grocery stores, hardware stores, shopping centers);
6) Service establishments (e.g. , laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals);
7) Public transportation terminals, depots, or stations (not including facilities relating to air transportation);
8) Places of public display or collection (e.g. , museums, libraries, galleries);
9) Places of recreation (e.g. , parks, zoos, amusement parks);
10) Places of education (e.g. , nursery schools, elementary, secondary, undergraduate, or postgraduate private schools);
11) Social service center establishments (e.g. , day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and
12) Places of exercise or recreation (e.g. , gymnasiums, health spas, bowling alleys, golf courses).
Can a facility be considered a place of public accommodation if it does not fall under one of these 12 categories? No, the 12 categories are an exhaustive list. However, within each category the examples given are just illustrations. For example, the category "sales or rental establishments" would include many facilities other than those specifically listed, such as video stores, carpet showrooms, and athletic equipment stores.
What does it mean for a facility's operations to "affect commerce"? The phrase "affect commerce" is a constitutional law concept frequently used in Federal statutes enacted pursuant to Congress' power to regulate interstate commerce. Some factors to examine in determining whether a facility's operation affects commerce are:
(a) Whether the facility is open to out-of-State visitors;
(b) Whether the products it exhibits or sells originated out of State, or have travelled through other States;
(c) Whether facilities of this kind, in the aggregate, would affect interstate commerce.
ILLUSTRATION: A private restaurant, located near an interstate highway, serves customers who come from other States and offers food that contains ingredients grown or processed in a different State. This restaurant's operations affect commerce because of any one of the following factors, independently: (a) it serves out-of-State customers; (b) it serves products that originated out of State; or (c) the restaurant industry as a whole affects interstate commerce.
What if a private entity operates, or leases space to, many different types of facilities, of which only relatively few are places of public accommodation? Is the whole private entity still a public accommodation? The entire private entity is, legally speaking, a public accommodation, but it only has ADA title III obligations with respect to the operations of the places of public accommodation.
ILLUSTRATION: ZZ Oil Company owns a wide range of production and processing facilities that are not places of public accommodation. It also operates a large number of retail service stations that are places of public accommodation. In this case, ZZ Oil Company would be a public accommodation. However, only its operations relating to the retail service stations are subject to the broad title III requirements for public accommodations. The other facilities, however, are commercial facilities and would be subject only to the requirements for new construction and alterations.
Do both a landlord who leases space in a building to a tenant and the tenant who operates a place of public accommodation have responsibilities under the ADA? Both the landlord and the tenant are public accommodations and have full responsibility for complying with all ADA title III requirements applicable to that place of public accommodation. The title III regulation permits the landlord and the tenant to allocate responsibility, in the lease, for complying with particular provisions of the regulation. However, any allocation made in a lease or other contract is only effective as between the parties, and both landlord and tenant remain fully liable for compliance with all provisions of the ADA relating to that place of public accommodation.
ILLUSTRATION: ABC Company leases space in a shopping center it owns to XYZ Boutique. In their lease, the parties have allocated to XYZ Boutique the responsibility for complying with the barrier removal requirements of title III within that store. In this situation, if XYZ Boutique fails to remove barriers, both ABC Company (the landlord) and XYZ Boutique (the tenant) would be liable for violating the ADA and could be sued by an XYZ customer. Of course, in the lease, ABC could require XYZ to indemnify it against all losses caused by XYZ's failure to comply with its obligations under the lease, but again, such matters would be between the parties and would not affect their liability under the ADA.
If the owner of a building is not covered by the ADA, is it possible for a private tenant to still have title III responsibilities? Yes. The fact that a landlord in a particular case is not covered by the ADA does not necessarily negate title III's coverage of private entities that lease or operate places of public accommodation within the facility.
ILLUSTRATION: A Federal Executive agency owns a building in which several spaces are rented to retail stores. Although Federal executive agencies are not covered by the ADA, the private entities that rent and operate the retail stores, which are places of public accommodation, are covered by title III.
Is a bank that acquires ownership of a place of public accommodation through foreclosure subject to title III? Yes. Any owner of a place of public accommodation is covered as a public accommodation regardless of the intended or actual duration of its ownership.
Can a place of public accommodation be covered by both the ADA and the Fair Housing Act (FHA)? Yes. The analysis for determining whether a facility is covered by title III is entirely separate and independent from the analysis used to determine coverage under the FHA. A facility can be a residential dwelling under the FHA and still fall in whole or in part under at least one of the 12 categories of places of public accommodation. ILLUSTRATION: LM, Inc. , a private, nonsectarian, nonprofit organization operates a homeless shelter permitting stays ranging from overnight to those of sufficient length to result in coverage as a dwelling under the FHA. Because it permits short-term, overnight stays, the shelter may also be considered a place of public accommodation as a "place of lodging," and covered by title III of the ADA. In addition, if the shelter provides a significant enough level of social services, such as medical care, meals, counseling, transportation, or training, it may also be covered under title III as a "social service center establishment. "
Are nursing homes, congregate care facilities, independent living centers, and retirement communities covered as places of public accommodation? Some may be. Nursing homes are expressly covered in the title III regulation as social service center establishments. Similar residential facilities, such as congregate care facilities, independent living centers, and retirement communities, are covered by title III, if they provide a significant enough level of social services that they can be considered social service center establishments. Social services in this context include medical care, assistance with daily living activities, provision of meals, transportation, counseling, and organized recreational activities. No one of these services will automatically trigger ADA coverage. Rather, the determination of whether a private entity provides a significant enough level of social services will depend on the nature and degree of the services.
If a facility provides a significant enough level of social services such that it can be considered a social service center establishment, all of those portions of the facility that are used in the provision of the social services are covered by the ADA. For example, if the social services are provided throughout the facility, including in the individual housing units, then the entire facility is a place of public accommodation, covered by title III.
Are group homes covered by title III? Sometimes. Like congregate care facilities and the other dual residential/social service facilities discussed above, group homes are covered by title III if they provide a significant enough level of social services to be considered social service center establishments. The homes are not subject to title III if they simply provide family-like living arrangements without significant social services. Foster care provided by a family in its own home is not covered.
Does title III apply to common areas within residential facilities? Although title III does not apply to strictly residential facilities, it covers places of public accommodation within residential facilities. Thus, areas within multifamily residential facilities that qualify as places of public accommodation are covered by the ADA if use of the areas is not limited exclusively to owners, residents, and their guests.
ILLUSTRATION 1: A private residential apartment complex includes a swimming pool for use by apartment tenants and their guests. The complex also sells pool "memberships" generally to the public. The pool qualifies as a place of public accommodation.
ILLUSTRATION 2: A residential condominium association maintains a longstanding policy of restricting use of its party room to owners, residents, and their guests. Consistent with that policy, it refuses to rent the room to local businesses and community organizations as a meeting place for educational seminars. The party room is not a place of public accommodation.
ILLUSTRATION 3: A private residential apartment complex contains a rental office. The rental office is a place of public accommodation.
Are model homes places of public accommodation? Generally, no. A model home does not fall under one of the 12 categories of places of public accommodation. If, however, the sales office for a residential housing development were located in a model home, the area used for the sales office would be considered a place of public accommodation. Although model homes are not covered, the Department encourages developers to voluntarily provide at least a minimal level of access to model homes for potential homebuyers with disabilities. For example, a developer could provide physical access (via ramp or lift) to the primary level of one of several model homes and make photographs of other levels within the home as well as of other models available to the customer.
Can a vacation timeshare property be a place of public accommodation? Yes. Whether a particular timeshare property is a place of public accommodation depends upon how much the timeshare operation resembles that of a hotel or other typical place of lodging. Among the factors to be considered in this determination are --
1) Whether the timeshare offers short-term ownership interests (for instance, stays of one week or less are considered short term);
2) The nature of the ownership interest conveyed (e.g. , fee simple);
3) The degree of restrictions placed on the ownership (e.g. , whether the timeshare owner has the right to occupy, alter, or exercise control over a particular unit over a period of time);
4) The extent to which the operations resemble those of a hotel, motel, or inn (e.g. , reservations, central registration, meals, laundry service).
If a public accommodation operating two geographically separate facilities serves clients or customers at one location and has only administrative offices at another, are both sites places of public accommodation? No. Only the facility in which clients or customers are served is covered as a place of public accommodation. The geographically separate, employees-only facility is a commercial facility, but any activities undertaken in that facility that affect the operations of the place of public accommodation are subject to the title III requirements for public accommodations.
ILLUSTRATION: A medical care provider owns one building in which patients are seen, and another building in a different location that contains only administrative offices. At the building housing the administrative offices, no services are provided (no patients go there, only employees). The building where patients are treated is a place of public accommodation. The geographically separate administrative offices are a commercial facility, not a place of public accommodation. However, any policies or decisions made in the administrative offices that affect the treatment of patients would be subject to the requirements for public accommodations. For example, a protocol for the provision of auxiliary aids that is issued as a directive to medical staff by the administrative office must comply with the effective communication requirements for public accommodations.
BUT: If patients receive medical services in the same building where the administrative offices are located, the entire building is a place of public accommodation, even if one or more floors are reserved for the exclusive use of employees.
Are privately owned ships covered by title III? Yes. Ships operated by a private entity that is primarily engaged in the business of providing transportation are subject to ADA requirements established by the U.S. Department of Transportation (see III-4.4700). (Ships registered under foreign flags that operate in United States ports may be subject to domestic laws, such as the ADA, unless there are specific treaty prohibitions that preclude enforcement.) If a ship, or portion of a ship, functions as one of the twelve categories of places of public accommodation, the ship is also subject to the title III requirements for places of public accommodation.
ILLUSTRATION: A cruise ship is owned and operated by a private entity whose primary business is to operate cruise ships. On the ship are places of lodging, restaurants, bars, a health club, and a nightclub. The private entity is a public accommodation and must comply with the applicable requirements of title III.
Places of public accommodation aboard ships must comply with all of the title III requirements, including removal of barriers to access where readily achievable. Currently, however, a ship is not required to comply with specific accessibility standards for new construction or alterations, because specific accessibility standards for new construction or alteration of cruise ships have not yet been developed.
III−1.3000 Commercial facilities. The requirements of title III for new construction and alterations cover commercial facilities, which include nonresidential facilities, such as office buildings, factories, and warehouses, whose operations affect commerce. This category sweeps under ADA coverage a large number of potential places of employment that are not covered as places of public accommodation. A building may contain both commercial facilities and places of public accommodation.
ILLUSTRATION: A manufacturing company has an extensive customer services operation, which takes customer complaints and provides other services in connection with the retail sales of the company's products. The customer services operation is a "service establishment," and is thus separately covered as a place of public accommodation under the ADA. The manufacturing operation is covered as a commercial facility.
A commercial facility, such as a manufacturing facility, is not a place of public accommodation solely by virtue of its being open to vendors, salespersons, or job applicants. However, under title I of the ADA, the private entity operating a commercial facility may have accessibility obligations regarding its job applicants.
III−1.3100 Exceptions. Commercial facilities do not include rail vehicles or any facility covered by the Fair Housing Act. Residential dwelling units, therefore, are not commercial facilities. In addition, facilities that are expressly exempted from coverage under the Fair Housing Act are also not considered to be commercial facilities. For example, owner-occupied rooming houses providing living quarters for four or fewer families, which are exempt from the Fair Housing Act, would not be commercial facilities.
Even though private air terminals are not considered to be places of public accommodation, are airports covered as commercial facilities? Yes, private air terminals are commercial facilities and, therefore, would be subject to the new construction and alterations requirements of title III. Moreover, while a private air terminal, itself, may not be a place of public accommodation (because the ADA statutory language exempts air transportation), the retail stores and service establishments located within a private airport would be places of public accommodation. (In addition, private airports that receive Federal financial assistance are subject to the requirements of section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability in programs and activities of recipients of Federal funds. Airline operations at private airports may also be subject to the nondiscrimination requirements of the Air Carrier Access Act.) Air terminals operated by public entities would be covered by title II of the ADA, not title III; but any private retail stores operated within the terminal would be places of public accommodation covered by title III.
III−1.4000 Examinations and courses. Private entities offering examinations or courses covered by title III are subject to the requirements discussed in III−4.6000 of this manual. If the private entity is also a public accommodation or has responsibility for a commercial facility, it would be subject to other applicable title III requirements as well.
III−1.5000 Religious entities. Religious entities are exempt from the requirements of title III of the ADA. A religious entity, however, would be subject to the employment obligations of title I if it has enough employees to meet the requirements for coverage.
III−1.5100 Definition. A religious entity is a religious organization or an entity controlled by a religious organization, including a place of worship. If an organization has a lay board, is it automatically ineligible for the religious exemption? No. The exemption is intended to have broad application. For example, a parochial school that teaches religious doctrine and is sponsored by a religious order could be exempt, even if it has a lay board.
III−1.5200 Scope of exemption. The exemption covers all of the activities of a religious entity, whether religious or secular.
ILLUSTRATION: A religious congregation operates a day care center and a private elementary school for members and nonmembers alike. Even though the congregation is operating facilities that would otherwise be places of public accommodation, its operations are exempt from title III requirements.
What if the congregation rents to a private day care center or elementary school? Is the tenant organization also exempt? The private entity that rents the congregation's facilities to operate a place of public accommodation is not exempt, unless it is also a religious entity. If it is not a religious entity, then its activities would be covered by title III. The congregation, however, would remain exempt, even if its tenant is covered. That is, the obligations of a landlord for a place of public accommodation do not apply if the landlord is a religious entity.
If a nonreligious entity operates a community theater or other place of public accommodation in donated space on the congregation's premises, is the nonreligious entity covered by title III? No. A nonreligious entity running a place of public accommodation in space donated by a religious entity is exempt from title III's requirements. The nonreligious tenant entity is subject to title III only if a lease exists under which rent or other consideration is paid.
III−1.6000 Private clubs. The obligations of title III do not apply to any "private club. " An entity is a private club for purposes of the ADA if it is a private club under title II of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, and national origin by public accommodations.
Courts have been most inclined to find private club status in cases where --
1) Members exercise a high degree of control over club operations.
2) The membership selection process is highly selective.
3) Substantial membership fees are charged.
4) The entity is operated on a nonprofit basis.
5) The club was not founded specifically to avoid compliance with Federal civil rights laws.
Facilities of a private club lose their exemption to the extent that they are made available for use by nonmembers as places of public accommodation.
ILLUSTRATION: A private country club that would be considered a "private club" for ADA purposes rents space to a private day care center that is also open to the children of nonmembers. Although the private club would maintain its exemption for its other operations, it would have title III obligations with respect to the operation of the day care center.
III−1.7000 Relationship to title II. Public entities, by definition, can never be subject to title III of the ADA, which covers only private entities. Conversely, private entities cannot be covered by title II. There are many situations, however, in which public entities stand in very close relation to private entities that are covered by title III, with the result that certain activities may be affected, at least indirectly, by both titles.
ILLUSTRATION 1: A State department of parks provides a restaurant in one of its State parks. The restaurant is operated by X Corporation under a concession agreement. As a public accommodation, X Corporation is subject to title III of the ADA. The State department of parks, a public entity, is subject to title II. The parks department is obligated to ensure by contract that the restaurant will be operated in a manner that enables the parks department to meet its title II obligations, even though the restaurant is not directly subject to title II.
ILLUSTRATION 2: The City of W owns a downtown office building occupied by W's Department of Human Resources. The first floor is leased as commercial space to a restaurant, a newsstand, and a travel agency. The City of W, as a public entity, is subject to title II in its role as landlord of the office building. As a public entity, it cannot be subject to title III, even though its tenants are public accommodations that are covered by title III.
ILLUSTRATION 3: A private, nonprofit corporation operates a number of group homes under contract with a State agency for the benefit of individuals with mental disabilities. These particular homes provide a significant enough level of social services to be considered places of public accommodation under title III. The State agency must ensure that its contracts are carried out in accordance with title II, and the private entity must ensure that the homes comply with title III.
ILLUSTRATION 4: If an existing commercial facility is owned by a private entity covered by title III and rented to a public entity covered by title II, the private landlord does not become subject to the public entity's title II program access requirement by virtue of the leasing relationship. The private landlord only has title III obligations. These extend to the commercial facility as a whole and to any places of public accommodation contained in the facility. The governmental entity is responsible for ensuring that the governmental programs and services offered in its rented space meet the requirements of title II.
Where public and private entities act jointly, the public entity must ensure that the relevant requirements of title II are met; and the private entity must ensure compliance with title III.
ILLUSTRATION: The City of W engages in a joint venture with T Corporation to build a new professional football stadium. The new stadium would have to be built in compliance with the accessibility guidelines of both titles II and III. In cases where the standards differ, the stadium would have to meet the standard that provides the highest degree of access to individuals with disabilities.
III−1.8100 Rehabilitation Act. Title III is intended to provide protection to individuals with disabilities that is at least as great as that provided under title V of the Rehabilitation Act. Title V includes such provisions as section 504, which covers all the operations of Federal Executive agencies and programs receiving Federal financial assistance. Title III may not be interpreted to provide a lesser degree of protection to individuals with disabilities than is provided under section 504.
III−1.8200 Other Federal and State laws. Title III does not disturb other Federal laws or any State law that provides protection for individuals with disabilities at a level greater or equal to that provided by the ADA. It does, however, prevail over any conflicting State laws.
ILLUSTRATION: A restaurant has constructed a new facility that is subject to both local building code accessibility requirements and the requirements of the ADA. With respect to some building features, the local code contains more stringent technical requirements than the ADA; with respect to others, the ADA has the stronger standard. Each building element should comply with the requirement (local or ADA) that provides the greatest degree of accessibility.
Which law applies if the ADA provides broader remedies, but the other applicable law provides more stringent technical requirements? Both. An aggrieved individual may file a lawsuit under both the ADA and another law where both apply, but the ADA's remedies would be applicable only to the ADA claim, because the ADA enforcement process may be used only to enforce the requirements of the ADA. The ADA would not preempt the other law's requirements or remedies.
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