Title III Technical Assistance Manual (with 1994 supplement)

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.