AN OVERVIEW OF THE DUTIES OF PRIVATE ENTITIES TO PROVIDE ACCOMMODATION TO INDIVIDUALS WITH DISABILITIES, By: Donald J. Spero, Esq.

AN OVERVIEW OF THE DUTIES OF PRIVATE ENTITIES TO PROVIDE ACCOMMODATION TO INDIVIDUALS WITH DISABILITIES

TITLE III OF THE AMERICANS WITH DISABILITIES ACT
AND RELATED FLORIDA STATUTES

INTRODUCTION

For research purposes you can download this article complete with footnotes in Word Format for research purposes.

When Congress passed the Americans With Disabilities Act (the "ADA") in 1990 it took note of the fact that "... some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population is growing older." Congress found that "...historically, society has tended to isolate and segregate individuals with disabilities, and, ...such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." Among the findings of Congress was that "... discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services." Congress determined that "...the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self sufficiency for such individuals." Among the purposes of the ADA was "... to provide a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities."

Title I of the ADA prohibits discrimination in employment on the basis of disability, perceived disability or a history of disability. Title II deals with prevention of discrimination on the basis of disability in public services, i.e. services offered by public entities such as state and local governments or departments of such entities, as well as in public transportation. Title III prohibits discrimination on the basis of disability in public accommodations and services offered by private entities. The ADA is thus a Bill of Rights for persons with disabilities. It mandates that they be given the opportunity to participate on equal terms in a wide spectrum of activities. It provides the means of enforcing that mandate by private suits as well as by governmental action.

This article, which deals with Title III, is in three sections. The first section covers .the specific requirements of Title III. The second section highlights some of the regulations that are most commonly encountered in actions seeking to enforce Title III. The third section is a discussion of interpretive case law.

The statute requires the Attorney General to issue regulations in accessible format to carry out the purposes of those provisions of Title III other than those relating to transportation. The regulations define a disability as "...a physical or mental impairment that substantially limits one or more major life activities of ...an individual." Having a record of such an impairment and being regarded as having such an impairment also qualifies one as having a disability. An impairment may be physical or psychological. The definition of impairment includes "...disfigurement or anatomical loss" affecting one or more of the bodies major systems or emotional illness, retardation and learning disability. It includes both contagious and non contagious diseases. Major life activities include "...caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working."

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

Title III also prohibits "associational discrimination." It is illegal to deny the benefits of a public accommodation "...to an individual or entity...because of the known disability of an individual with whom the individual or entity is known to have a relationship or association." Discrimination against an individual because of a known familial, business or personal relationship with an individual with a disability is prohibited. For example a health care provider may not decline to treat someone because of that person's relationship with one who has a communicable disease. A covered entity may not refuse its goods, services or accommodations to an organization that is known to serve those with disabilities. An example might be a hotel or auditorium declining to accept bookings for a convention for members of an organization which advocates rights for the disabled.

A covered entity may not deny the opportunity of those clients or customers who are protected by Title III "...to participate, or benefit from [its] goods, services, facilities, privileges, advantages, or accommodations..." through "... licensing, leasing or other arrangements" nor may

it offer those benefits to them in a manner "...that is not equal to that afforded to other individuals." The regulations issued by the Attorney General state that "Both the landlord and tenant who owns the building that houses a place of public accommodation are subject to the requirements of [Title III}." A landlord and tenant may contractually allocate responsibility for ADA compliance between themselves. It is also discriminatory to offer to protected clients or customers different facilities than those provided to others unless it is necessary to do so to provide accommodations that are as effective as those provided to others.

In designing facilities and offering services, it is important to bear in mind that a central idea of Title III is to provide persons with disabilities access to goods, services and facilities in an integrated setting to the greatest extent feasible taking into consideration "...the needs of the individual."

It is impermissible to impose eligibility criteria that screen out individuals with disabilities from the offerings of a covered entity "...unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered." It is, however, not necessary to change the essential nature of the particular offering to accommodate those with disabilities.

Of prime interest to those who must fulfill the requirements of Title III are the affirmative steps that must be taken to assure access to individuals with disabilities. Commonly modifications are necessary to structures built before July 26, 1990. A violation occurs where there is:

...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...where such removal is readily achievable, and ...where an entity can demonstrate that the removal of a barrier...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. (Emphasis supplied)

"Readily achievable" is an important term of art. Many of the questions that arise in controversies involving Title III turn on whether a modification or making accommodations by alternative methods is readily achievable. The covered entity may have the burden of showing that an action is not readily achievable. This can be a formidable burden. The statute defines readily achievable as "...easily accomplishable and able to be carried out without much difficulty or expense." The statute names four non-exclusive factors to be taken into account to determine if a change is readily achievable:

(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 on of such action on the operation of the facility;

(C) The overall resources of the covered entity; the overall size of the business of the covered entity with respect to its number of 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 work force of such entity; the geographic separateness, administrative relationship of the facility or facilities in question to the covered entity.

Public accommodations are required "...to remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where such removal is readily achievable ... and able to be carried out without much difficulty or expense." (emphasis supplied) Barrier removal might require installing ramps, making curb cuts, repositioning telephones, shelves and display racks and widening doors. Other barrier removal might involve the installation of an accessible paper cup dispenser at a drinking fountain, insulation of lavatory pipes under sinks to prevent burns, installing grab bars in toilet stalls, creating designated accessible parking spaces and removing high pile low density carpeting. The foregoing is, of course, only a partial list of what might be necessary to provide the required accessibility.

The regulations assign priorities to the removal of various barriers in existing facilities. The first priority is giving access from parking, sidewalks and public transportation. This might require installation of ramps, widening doors and providing accessible parking spaces. The second order of priority is providing access to those places where goods or services are offered to the public. To accomplish this it may be necessary to adjust displays, provide raised Braille signage, widen doors or install ramps. Rearrangement of movable displays is not required where it will significantly reduce selling or serving space. The third order of priority is providing access to restrooms. This might require widening of doors, installing grab bars and widening of toilet stalls. Finally the fourth priority in removing barrier in existing facilities is "...taking any other measures necessary to provide access to the goods, services, facilities, privileges, advantages or accommodations of a place of public accommodation."

The regulations set forth specific requirements for making assembly areas accessible. Where readily achievable a "reasonable" number of wheel chair seating spaces and seats with removable aisle-side arm rests must be provided. Wheel chair seating should be dispersed to provide "...lines of sight and choice of admission prices comparable to those for members of the general public." There must be an accessible route to the seating. The seats should allow family or companions to sit with a person who uses a wheelchair. Where the seating capacity is greater than 300 wheelchair spaces must be provided in more than one location.

Covered entities must also modify practices, policies and procedures in order to accommodate individuals with disabilities unless "...making such modification would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations" in question. In addition it is required "...to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless ... taking such steps would fundamentally alter the nature of the good, service, privilege, advantage, or accommodation being offered or would result in an undue burden."

Required auxiliary aids might consist of apparatus to aid those who are hearing impaired in theaters or other places of public entertainment. Also included might be special telephones for the hearing impaired or lifting devices to assist one with a mobility impairment into a swimming pool. Required auxiliary services might include providing readers, audio recordings, enlarged or Braille text or other devices to assist the visually impaired. Braille lettering on elevators, offices and rest rooms are also frequently required. Hotels and hospitals may need to provide closed caption decoders on television sets. The burden is always on the covered entity to show that there will be a fundamental alteration if procedures are modified or auxiliary devices are provided, or that there will be an undue burden to supply such devices.

Title III is more strict for facilities constructed or altered after July 26, 1990. Facilities built after that date must be "...readily accessible and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impractical to meet with the requirements"of the statute and the regulations issued under the authority of the statute. (emphasis supplied). Alterations to facilities or portions of facilities made after that date must be made "...in such a manner that to the maximum extent feasible, the altered portions of the facility are readily accessible and usable by individuals with disabilities, including individuals who use wheel chairs." The alterations must also take into consideration to the maximum extent feasible the path of travel to the altered areas as well as to bathrooms, telephones and drinking fountains serving the altered areas. The bathrooms, telephones and drinking fountains must be "...readily accessible and usable by individuals with disabilities." The facilities are not required to make the paths of travel, bathrooms, drinking fountains and telephones accessible where the scope and cost of such alterations are disproportionate to the overall alterations. According to the regulations "When the cost exceeds 20% of the cost of the alteration to the primary function area..." it will be deemed disproportionate to the overall alteration.

As is the case with existing and newly altered facilities the regulations set priorities for provision of access in newly constructed facilities. The order enumerated is as follows:

(iii) At least one accessible restroom for each sex or a single unisex restroom;

(vi) When possible, additional accessible elements such as parking, storage, and alarms.

Elevators are not required in new construction for structure that have fewer than 3000 square feet per floor or that are less than three stories "...unless the building is a shopping center, a shopping mall, or the professional office of a health care provider unless the Attorney General determines that a particular category of such facilities requires the installation of elevators based on the usage of such facilities." A shopping mall or center is one in which there are "...five or more rental establishments" or an aggregation of buildings on a common site with common pedestrian access routes which have been developed in common or are under common control and house five or more sales or rental establishments.

The regulations require public accommodations to allow persons with disabilities to use service animals although they are not required to care for or supervise the animal. Service animals include dogs to help the visually impaired or some "...other animal trained to do work or perform tasks for an individual with a disability, including ...guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items."

It is not required for public accommodations to provide individuals with personal devices such as wheelchairs, eyeglasses or hearing aids. Neither are they required to provide personal services such as assistance with eating, dressing or using a toilet. Nor is it necessary for a public accommodation to maintain an inventory of special goods that are designed for the use of persons with disabilities.

Those who offer examinations or courses for application, licensing or examining or for postsecondary education or trade or professional purposes must make them accessible to individuals with disabilities or offer alternative accessible arrangements. Examinations must be administered to those with impaired manual, sensory or speaking skills in a manner that measures the skills or qualities that the examination is intended to measure rather than reflecting the individual's impairment, unless the impairment involves skills that the examination is intended to measure. It may be necessary to provide additional time or auxiliary aids to an examinee with a disability. Aids might include Brailled or enlarged text and answer sheets or a qualified reader. It may on occasion be required to offer an examination at an individual's home in the presence of a proctor if other suitable arrangements are not available. Similar aids and modifications may be required of private entities that offer courses related to licensing, credentialing for secondary or post secondary education, or professional or trade purposes.

Notwithstanding the foregoing Title III does not require accommodating an individual who "...poses a direct threat to the health or safety of others." A "direct threats" is defined as "...a significant risk to the health or safety of others that cannot be eliminated by modification of policies, practices, or procedures, or by the provision of auxiliary aids or services." (emphasis supplied). It is undecided whether this subsection also allows not accommodating one who poses a direct threat to himself. Similar language in Title I of the ADA has been found to prohibit employment discrimination against one where that employment might pose a direct threat to the individuals own health or safety.

Title III also exempts from its coverage private clubs as well as "...religious organizations or entities controlled by religious organizations, including places of worship." In addition certain specific conditions are not covered by Title III. Transvestism is specifically excluded. Also excluded from coverage under the ADA are homosexuality, bisexuality, transexualism, pedophilia, exhibitionism, voyeurism, sexual behavior disorders, kleptomania, pyromania and compulsive gambling. A person who is currently using drugs is not an individual with a disability. However persons who are not currently using drugs, who have successfully completed or are participating in a drug rehabilitation program or are otherwise rehabilitated, are covered. One who is erroneously regarded as using drugs is protected by the act. The ADA takes a neutral stand on drug testing. It neither forbids or authorizes testing for the illegal use of drugs.

Under the statute's "safe harbor provision" an insurer, HMO or entity that administers health benefit plans may take into consideration "... risks that are based on or not inconsistent with State law." An organization that establishes, sponsors, or administers a plan otherwise covered by Title III may also take into account such risks. However the insurer may not avail itself of the safe harbor where it is used as a subterfuge to evade the purposes of the statute.

Title III is broadly inclusive in defining the covered entities that are brought within its coverage. The definition found in the statute is set out verbatim below:

_ (A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;

_ (C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

_ (D) an auditorium, convention center, lecture hall, or other place of public gathering;

_ (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

_ (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

_ (G) a terminal, depot, or other station used for specified public transportation;

_ (H) a museum, library, gallery, or other place of public display or collection;

_ (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

_ (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

_ (L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

Obviously there are few private providers of good or services who are not required to adhere to the manifold requirements of Title III. Accordingly it is well for providers to become acquainted with those requirements and to be certain that their facilities are sensitive to those with the broad spectrum of disabilities that the statute is designed to enfranchise.

Title III generally prohibits discrimination "...on the basis of disability in the full and equal enjoyment of transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce." The use of criteria that screen out people with disabilities from the use of these transportation services is forbidden unless the use of such criteria can be shown to be essential to the provision of those services. Private transportation providers are required to make modifications unless they can show that the modifications would fundamentally alter the nature of the service provided. They must also provide auxiliary aids and services unless they can show that doing so would fundamentally alter the service provided or impose an undue burden. Furthermore they are obliged to remove barriers where doing so is readily achievable and where not readily achievable find other methods make their services available through other means where such are readily achievable. Transportation companies may also not purchase or lease new vehicles to provide their services that are not readily accessible. Vans with a seating capacity of fewer than eight people including the driver and over the road buses are exempted from this requirement. There is also an exemption if the vehicle is to be used for a demand responsive system where the company can demonstrate that it provides a comparable level of services to individuals with disabilities. A demand responsive system is one that provides transportation of individuals by vehicles other than over a fixed route system. A fixed route system is one that provides transportation other than by aircraft over a set route on a fixed schedule. Over the road buses must comply with the regulations issued by the Secretary of Transportation.

Title III adopts the injunction provision of Title VII of the 1964 Civil rights act. An action for preventive relief may be brought by one who is being subjected to discrimination on the basis of disability or by one who has reasonable grounds to believe that he or she is about to be subjected to discrimination in a structure built for first occupancy or altered after July 26, 1990. An action for a temporary restraining order may be brought by the "person aggrieved." The Attorney General may intervene in such an action where "...he certifies that the case is one of general public importance." The court has discretion to appoint an attorney for the plaintiff and to waive payment of filling fees.

A key provision of the statute is that a person with a disability is not required "...to engage in a futile gesture if such person has actual notice that a person or organization covered [by Title III] does not intend to comply with its provisions." This provision often allows an individual to file suit without a prior warning or demand for compliance. As a result the defendant may at the outset be obligated for the plaintiff's attorney fees. Attorney's fees and litigation costs may be assessed in favor of a prevailing party other than the United States. As a practical matter it is not very likely that fees will be assessed against a plaintiff who does not prevail.

A court may order facilities to be altered to be made readily accessible where there has been a failure to remove structural and communication barriers in existing facilities and barriers in existing vehicles and rail transportation cars. Alterations may also be ordered to facilities built for first occupancy or altered after July 26, 1990.

The Attorney General has the power to enforce Title III. The Attorney General has the duty to investigate complaints of violations and perform compliance reviews of entities covered by the statute. The Attorney General also has the power to certify comparable state and local statutes and ordinances as meeting the minimum requirements of Title III. A certification is admissible in an enforcement proceeding as evidence that the state or local law meets the requirements of Title III. A certification of equivalency issued by the Attorney General establishes that a state or local "...code meets or exceeds the requirements of title III ... for accessibility and usability of facilities..." that are covered by the statute. The certification is not, however, conclusive evidence of compliance. It is subject to rebuttal. To obtain a certification the state or local government must apply to the Attorney General. The Attorney General then must give notice of a public hearing at which interested parties may appear and testify against certification.

The Attorney General has the power to sue to enforce Title III where there is a pattern and practice of discrimination in violation of Title III or where alleged discrimination raises an issue of public importance. In such an action the court is empowered to grant a broad spectrum of relief. The court may require the provision of auxiliary devices, modification of policies, practices or procedures and making facilities readily accessible. Upon the request of the Attorney General the court may award monetary damages to an aggrieved individual. Civil penalties may be assessed in an amount of up to $50,000 for the first violation and $100,000 for subsequent violations. In assessing a civil penalty the court may take into consideration good faith efforts or attempts to comply with the act. Among the factors to be considered in determining good faith is whether the defendant could have "...reasonably anticipated the need for an appropriate type of auxiliary aid needed to accommodate the unique needs of a particular individual with a disability." Punitive damages are not available in an action brought by the Attorney General.

Title III also has a non-retaliation prohibition. It prohibits discrimination against an individual because that person opposed an act that violates the statute or because the person has "... made a charge, testified, participated, or assisted in any manner in an investigation, proceeding or hearing" under Title III. It is also illegal to "coerce, threaten, intimidate, or interfere with any individual in the exercise or enjoyment of any right granted by [Title III]" or for aiding or encouraging others to do so. A civil action for injunctive relief may be brought by one who is aggrieved by a violation of the non-retaliation provisions of the statute.

Title III mandates the Architectural and Transportation Compliance Board to issue minimum guidelines for compliance for accessible design to ensure accessibility in covered entities and facilities, including transportation facilities "...in terms of architecture and design, transportation and communication, to individuals with disabilities."

The statute encourages the use of alternative dispute resolution such as mediation, arbitration and minitrials "Where appropriate and to the extent authorized by law."

Title III applies to public accommodations which by definition in the statute are private entities. Title II of the ADA applies to public entities. Public entities include state or local governments and any of their arms, instrumentalities or agencies. Title II also applies to the National Railroad Passenger Corporation and to any commuter authority. The prohibitions of Title II are as follows:

Title II adopts the remedies and enforcement procedure of the Rehabilitation Act of 1973 as its enforcement procedure. That statute in turn adopts the remedies, rights and procedures of Title VII of the 1964 Civil Rights Act.

There is a special consideration in the application of Title II where the public entity is a state

rather than a local government. The ADA by its terms is intended to apply to states. On its face it purports to abolish the Eleventh Amendment immunity of states to suit in federal court. However, a five to four majority of the Supreme Court has strictly limited the power of Congress to override states' Eleventh Amendment immunity. Consistent with those rulings the Supreme Court in Board of Trustees of the University of Alabama v. Garrett., ruled that Congress did not effectively override states Eleventh Amendment immunity to suits against states under Title I when it enacted the ADA. Although the decision does not deal with Title II, similar reasoning would likely be applied if an action against a state agency under Title II. Since the Eleventh Amendment only prohibits suits by individuals against a state it would not prevent a Title III suit by the Attorney General.

A state can waive its Eleventh Amendment immunity and it might be argued that Florida waived its immunity to suits under Title II by enacting the Florida Americans With Disabilities Act which does apply to the state and its agencies. In any case there remains the possibility of a remedy against the state under the Florida statute.

Advocates of the ADA have argued that the ruling in Garrett applies only to actions for money judgements and not injunction actions. In Ex Parte Young the Supreme Court upheld the validity of an injunction prohibiting the Attorney General of Minnesota from enforcing an order of the state railroad and warehouse commission. The enjoined order had fixed excessively low rates for intrastate railroad shipments and provided severe penalties for violation of those rate schedules. However the Supreme Court limited the use of injunctions against states in Seminole Tribe v. Florida because the statute in question, the Indian Gaming Regulatory Act, had a detailed enforcement procedure of its own. Title II does not have a comparably detailed enforcement procedure but opponents of a Title II injunction might try to raise that argument. It is likely that individuals will be able to obtain injunctive relief against states in Title II actions.

In Florida discrimination against the disabled as well as other protected groups is provided by the Constitution:

In addition to Title III, owners and operators of public accommodations in Florida must be aware of the sometimes stricter requirements of the Florida Americans With Disabilities Act.("FADA") This statute was enacted with the purpose of incorporating the accessibility requirements of Title III and obtaining certification from the Attorney General. It adopts and incorporates the ADA accessibility guidelines set out in 28 CFR part 36 as the minimum standards for buildings in Florida. There are some guidelines in the Florida statute that are more demanding than those in Title III. (see Appendix for a comparison of some of the provisions of FADA with Title III.) Furthermore FADA, unlike Title III, does not exempt private clubs. Additionally, unlike Title III, FADA does apply to single family homes, duplexes, triplexes and condominiums. In 1998 the Department of Justice certified the Florida Accessibility Code for Building Construction.

FADA exempts buildings that were in existence or under contract for construction on October 1, 1997 unless they are undergoing conversion from residential to nonresidential or are undergoing renovations that will affect usability or accessibility. FADA is also more stringent than Title III in that it requires "...vertical accessibility to all levels above and below the occupiable grade level."

Enforcement of FADA is entrusted to the local governments and their code enforcement agencies.

As can be seen from the laundry list of covered entities listed in 42 U.S.C. � 12183(a)(1) quoted previously, Title III does not apply to residential property. However there are both Federal and Florida statutes that have bearing on this issue.

The Federal Fair Housing Act (the "FHA") in certain instances bars discrimination in certain covered real estate transaction. Discrimination on the basis of race, color, religion, sex, handicap, familial status or national origin is prohibited. It is unlawful to advertise real estate indicating a preference or limitation based on handicap or to state that a dwelling "...is not available for inspection, sale, or rental when such dwelling is in fact so available." Discrimination is prohibited in the sale or rental of a covered property because of a handicap of a buyer, renter, occupant, prospective occupant or any person associated with the buyer or renter. It is also unlawful to discriminate "...in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with that dwelling..." because of the handicap of the buyer, renter, occupant or person associated with any of them.

The FHA exempts from its coverage single family dwellings sold or rented by an owner if that owner does not own more than three single-family dwellings, provided that the owner does not engage in more than one transaction in a 24 month period. Rooms or units in dwellings occupied by no more than four families who live independently are also exempted where the owner lives on the premises. The act does not require making a dwelling available to one "...whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others."

The definition of a handicapped individual in the FHA tracks the definition in the ADA. A handicap is "...a physical or mental impairment which substantially limits one or more of [a] person's major life activities...a record of having such an impairment, or being regarded as having such an impairment." Illegal use of or addiction to a controlled substance is not a handicap.

The FHA requires landlords to allow handicapped tenants to make modifications to the leased premises at their own expense "...if such modifications may be necessary to afford such individual full enjoyment of the premises." The landlord may, in a proper case, require that the premises be restored to their condition prior to the modification at the termination of the tenancy. The landlord must also make accommodations in rules, policies, practices or services where necessary to afford a handicapped tenant equal opportunity to use the dwelling. Covered multifamily dwellings erected for occupancy after September 13, 1988 must be designed and constructed to accommodate persons with handicaps. The public areas of the buildings must be readily accessible and doors must be of sufficient width to accommodate wheel chair users. The living space in the units must allow accessible passage. Light switches, electrical outlets and environmental controls such as thermostats must be located accessibly. Bathroom walls must be reinforced to allow for the installation of grab bars. Kitchens and bathrooms must be accessible to wheel chair users. Covered multifamily dwellings are those consisting of four or more dwelling units if the building has at least one elevator and the ground floor dwellings "...in other buildings consisting of 4 or more units."

Enforcement of the FHA may be through a private civil action or in an action brought by the Attorney General. The court may order an injunction and the prevailing party may be awarded attorney's fees. In an action brought by the Attorney General a civil penalty as high as $50,000 may be awarded for the first offense and up to $100,000 for subsequent violations. The FHA also has an anti retaliation provision prohibiting taking actions against those invoking the benefits of the act.

Florida's Fair Housing Act (the "FFHA") provides protection against "discriminatory housing practices" in terms essentially identical to those in the FHA. Discrimination on the basis of handicap is prohibited in the sale, rental or representation of availability of real estate. It is also prohibited in the offering of brokerage services. Associational discrimination is prohibited as well. As is the case with the FHA a lessor must permit a handicapped tenant to make necessary modifications to allow the person full enjoyment of the premises. Multifamily dwellings constructed for use after March 13, 1991 are required to have an accessible entrance. Their public and common use portions must be accessible. Doors must accommodate wheel chair users. Light switches, electrical outlets and environmental controls must be accessible. There is a single family use exemption modeled after that in the FHA. The FFHA, like the FHA, has an anti retaliation provision. It also bars discrimination against handicapped individuals in the provision of brokerage services and in the financing by lending institutions of purchases and improvements.

An individual claiming a violation of the FFHA may file an administrative charge with the Florida Commission on Human Relations which has investigatory and adjudicatory powers. There is also provision for private civil actions. Civil penalties can be imposed for violations ranging from a $10,000 to $50,000, depending on their frequency.

The Department of Justice has published the ADA Accessibility Guidelines For Building and Facilities (the "ADAAG") which is found at 28 CFR Chapter I. The ADAAG is an involved and complex document which is beyond most of us to absorb much less comprehend. A brief review of the document readily demonstrates the need for expert assistance to assure compliance, preferably before a suit is filed. What the uninitiated can obtain from an overview of the ADAAG is an idea of the places where an entity covered by the act may be most vulnerable. This section will point out some of the areas where compliance problems are likely to appear. It is not intended to be a comprehensive listing of all accessibility requirements. To assure compliance one should refer directly to the specific sections of the ADAAG.

The ADAAG requires at least one accessible route within a facility from accessible parking, public transportation, passenger loading zones and public streets or sidewalks to the accessible entrance they serve. An accessible route is also required to connect buildings and facilities on a

site. It is necessary to have an accessible route to connect accessible entrances with accessible areas within the site. An accessible route must be at a minimum 36 inches wide. If the accessible route is less than 60 inches wide, passing spaces must be provided at intervals of no less than 200 feet. Ground and floor surfaces along accessible routes must meet certain requirements. They must be slip resistant. Changes in level less than 1/4 inch may be vertical and do not require any edge treatment. Changes in level between 1/4 and � inch must be beveled with a slope of no more than 1:2. If a change in level is greater than � inch it is necessary to have a ramp. Carpet must be securely attached and have and have a firm backing. The maximum permitted pile thickness is � inch. Exposed ends must be fastened and have trim along the length of the edge.

Objects protruding from walls such as telephones are a hazard that must be avoided along accessible ways. If the leading edge of a protruding object is between 27 and 80 inches above the floor the object may not protrude more than four inches into corridors or walkways. If the leading edge is 27 inches or below there is no limit to how far it may protrude. The protrusion may not reduce the clear width of a route or the maneuvering space.

Where an accessible routed crosses a curb, a curb cut is required. The minimum width required of a curb cut is 36 inches exclusive of the beveling. Beveling is required where there are no handrails. Curb ramps are required to have a detectable warning extending their full length and width. Detectable warnings must be "...truncated domes with a diameter of nominal 0.9 in..., a height of nominal 0.2 in... and a center-to-center spacing of nominal 0.2.3 in... and shall contrast visually with adjoining surfaces, either light-on dark or dark-on-light." Where a curb ramp is at a marked crossing it must be entirely within the crossing.

Ramps are required on any part of an accessible slope that is greater than 1:20. The maximum allowable rise for any ramp is 30 inches. The slope of the ramp in newly constructed facilities must be no greater than 1:12. In altered or existing facilities where there is not enough space for a 1:12 slope, a slope of between 1:10 and 1:12 is permissible if the rise is no greater than six inches. The regulations allow a slope of from 1:8 to 1:10 where the rise is no greater than 3 inches. A slope of greater than 1:8 is never allowed.

The minimum width of a ramp is 36 inches. Level spaces must be provided at the bottom and the top of a ramp that are at least as wide as the ramp. The level spaces must be no less than 60 inches in length. Where a ramp changes direction at landings the landing must be at least 60 by 60 inches. Where a ramp has a rise of greater than 6 inches or a run of longer than 72 inches it must have handrails on both sides. The handrails must extend at least 12 inches beyond the top and bottom of the ramp. The cross slope of a ramp may not exceed 1:50.

The ADAAG fixes the number of required parking spaces where self-parking spaces are provided to customers or employees in the following ratio:

One in eight accessible spaces, but at least one, must be served by an access aisle at least

96 inches wide with vertical clearance of no less than 98 inches at the space and along at least one vehicle access route to the spaces. Accessible parking spaces must have an adjacent access aisle at least 60 inches wide. At least one in eight accessible parking spaces but no less than one accessible parking space must be van accessible. A van accessible parking space must have an adjacent access aisle at least 96 inches wide. Accessible spaces and van accessible spaces must be designated "accessible" or "van accessible," respectively by signage.

Where Accessible parking spaces serve a particular building they must be placed on the shortest accessible route to an accessible pedestrian entrance. Where buildings have more than one accessible entrance the accessible parking spaces must be dispersed to be located closest to those accessible entrances.

Accessible parking spaces must be at least 96 inches wide. They must be level, having a surface slope of no greater than 1:50. Two accessible parking spaces may share an accessible aisle. Accessible parking spaces must be designated with signage showing the accessibility symbol. There must be overhead clearance of at least 114 inches at accessible passenger loading zones and along the routes to those loading zones.

The spout outlet of a drinking fountain may be no higher than 36 inches above the floor. The spout must be at the front of the fountain and direct its trajectory parallel to the front of the fountain. The flow must be at least four inches high to allow the water to be collected in a cup or glass. The controls should be front mounted or side mounted near the front edge.

In new construction , where only one drinking fountain is provided on a floor there must be at least one that is accessible to persons who use wheel chairs and one accessible to persons who have difficulty bending or stooping. Where there are more than one drinking fountains on a floor at least 50 percent must be accessible.

In retail stores where there are cash register counters at least one must be at least 36 inches long and be no more than 36 inches above the floor. It must be on an accessible route. Accessible counters should be dispersed throughout the establishment. Accessibility must also be provided at bank teller stations, ticket counters and at hotel registration desks. This can be accomplished by making a portion of the main counter accessible with a height of 35 inches and a length of at least 36 inches. Alternatively an auxiliary counter no more than and 36 inches in height may be provided near by. Another possible way of providing accessibility at counters is having a folding shelf at the counter to provide a place for a disabled individual to write.

In new construction two accessible checkout aisles must be provided for each non accessible checkout aisle up to eight. Where there are between eight and fifteen check out aisle three accessible checkout aisle are required. Twenty percent of all checkout aisles over fifteen must be accessible. Where a newly constructed facility is no more than 5000 square feet, only one accessible check out counter is required. A clear width of 36 inches is required for accessible aisles although they may be constricted to 32 inches at a point. Signage must be provided over accessible checkout aisles to identify them.

Where revolving doors and turnstile are used they are not permitted to be the only means of access along an accessible route. An adjacent accessible door or gate must be placed adjacent to the turnstile or revolving door. Doorways are required to have a minimum clear opening of 32 inches with the door open to 90 degrees measured from the opposite stop. Where two doorways are aligned in a series the minimum space between them must be 48 inches plus the space taken by any door that opens into the area between the doorways. The threshold at a doorway may be no more than 3/4 inch for exterior sliding doors. For other doors it may be no more than � inch in height. Door handles must be of a configuration that is easy to grasp with one hand. They should not require tight grasping, pinching or twisting to operate. Hardware on accessible doors may be mounted no more than 48 inches from the floor. In most cases the required door opening force must be no more than five pounds. The opening force on fire doors shall be the minimum allowed under local ordinances. Where automatic door openers are used no more than 15 pounds of pressure may be required to stop the door.

Accessible water closets that are not in stalls may have clear space arranged to allow either a left-handed or right-handed approach. The toilet seat shall be between 17 and 19 inches from the floor and they may not be sprung to return to a lifted position. A grab bar at least 36 inches in length must be placed behind the water closet. Flush valves may be automatic or hand controlled. The controls must be operable with one hand and should not require tight grasping, squeezing or turning of the wrist. No more than five pounds of force should be required to operate the control. The toilet paper dispenser must be within reach. It must allow continuous flow and not control delivery.

Accessible toilet stalls, must have a minimum depth of 56 inches. In those with at least 59 inches depth, floor mounted water closets may be used. If the depth is more than 56 inches and less than 59 inches a wall mounted water closet must be used. If the depth of the stall is at least 60 inches no toe clearance is required. Otherwise there must be a toe clearance of at least 9 inches on the front partition and at least one side partition. The door width of the stalls must have at least a 32 inch clear opening with the door open to 90 degrees. Door handles and latches must be in a shape that is easy to grasp and not require too great a pressure or twisting of the wrist to operate. Grab bars are also required.

Clear floor space of at least 30 inches by 48 inches on an accessible route must be provided in front of accessible urinals. Hand operated flush controls may be mounted no more than 44 inches above the floor. Urinals must have an elongated rim that is no more than 17 inches above the floor.

Lavatories must be mounted with a rim or surface no more than 34 inches from the floor. A clearance of at least 29 inches from the floor must be provided beneath the apron. It is important to insulate the hot water and drain pipes beneath lavatories or to configure them to prevent contact. Lever operated, push type and electronically controlled levers are acceptable. Where self-closing valves are installed the flow of water must be at least 10 seconds. Mirrors must be mounted with the bottom edge no more than 40 inches from the floor.

Accessible bathtubs must have a clear floor space in front. They must have a seat in the tub or at the head end of the tub. Grab bars are also required. The accessible bath tub must be provided with a spray head having a hose of at least 60 inches that can be held by hand or used as a fixed shower head. Bathtub enclosures should not obstruct either the controls or the transfer of an individual from a wheelchair into the tub or onto the bathtub seat.

Accessible shower stalls must be at least 36 inches by 36 inches. A seat must be provided in a shower stall that is between 17 inches and 19 inches from the floor. It must extend the width of the stall. Grab bars are required in the shower stall. Wherever grab bars and hand rails are required they must have a width of diameter of between 1 1/4 to 1 � inches. Where mounted on a wall they must be spaced 1 � inches from the wall. Controls must be mounted on the wall opposite of the seat.

Like lavatories, sinks must be mounted so that the counter or rim is no more than 34 inches from the floor. The sink may be no more than 6 � inches deep with a clear floor space in front of at least 30 inches by 48 inches. Sinks must be on an accessible route that shall extend a maximum 19 inches underneath the sink. As in the case of lavatories pipes that carry hot water beneath the sink must be insulated or configured to prevent contact. Acceptable faucets include lever-operated, push type, touch-type or electronically controlled.

Accessible elevators must be on an accessible route. They must be automatically operated and self-leveling to � inch of floor landings. Call buttons in lobbies or halls must be no less than 3/4 inches in the smallest dimension. They should be centered 42 inches above the floor. They must provide visual signals to indicate when a call is registered and answered. The button designating the up direction must be on top. No object mounted below the call button should project more than four inches from the wall. Visible and audible signals must be provided at each elevator entrance to indicate which car is answering a call. The centerline of the hall lantern fixture must be at least 72 inches above the floor. Their smallest dimension must be no less than 2 � inches. Braille floor designations must be placed on both door jams of a hoistway entrance. The centerline of the characters is required to be 60 inches above the floor. The characters must be two inches high.

Elevator doors must open and close automatically. They must be equipped with a device that will cause them to open automatically if the door becomes obstructed by an object or a person. When the opening device is activated the door must remain open for at least 20 seconds.

Elevator floor space must provide room for maneuvering a wheelchair. Control buttons must be at least 3/4 inch in their smallest dimension. They may be raised or flush. Braille and raised standard letters or characters must be placed at the left of the control buttons. The buttons must be no more than 54 inches above the floor for a side approach and 48 inches off the floor for a front approach. The call button for a main entry must be designated by a raised star at the left of the floor designation. Emergency controls such as the alarm button and the stop button must be placed at the bottom of the control panel with their center lines no more than 34 inches above the floor.

Elevator cars must have both audible and visual position indicators. The visible indicator must be above the control panel or above the door. Elevator cars must also have two way emergency communication systems to a point outside the elevator.

Stairs are required to have uniform heights and tread widths. The tread widths must be no less than 11 inches measured from riser to riser. The undersides of stair nosings must be rounded and not abrupt. Continuous handrails are required on both sides of the stairs. If they are not continuous they must extend 12 inches plus the width of one tread beyond the bottom riser. At the top the extended rail must be parallel to the floor. At the bottom the handrail must continue to slope for the width of one tread from the bottom riser with the remainder of the extension being horizontal. Handrails should be placed to provide a clear space 1 � inches from the wall.

Where a walkway crosses or is next to a way on which there is vehicular traffic and there is no curb, rail or other physical separation a 36 inch wide raised detectable warning must be placed at the boundary. Detectable warnings have truncated domes .9 inches in diameter and .2 inches in height. The domes should have a center to center spacing of 2.35 inches. The domes should contrast in color with adjoining surfaces. The edges of reflecting pools must also be protected by detectable warnings where there are no railings, curbs or walls to give notice of their presence.

All public and common use areas of hotels and motel must be accessible. Accessible rooms are required in the numbers indicated in the following table:

In addition there must be sleeping rooms or suites with visual alarms and telephones for the hearing impaired in a proportion like that for accessible sleeping rooms. Persons with disabilities must be afforded the same range of options as to size, price, amenities and number of beds as non disabled guests.

Accessible sleeping rooms must be on accessible routes. There must be a clear width maneuvering space or 37 inches on each side of a bed. Accessibility must be provided to telephones, and all other accessible spaces within the suite or room. Doors, storage spaces and closets must also be accessible. There must be at least one accessible bathroom.

Accessible public telephones must have a clear floor space at least 30 inches by 48 inches that allows a forward or parallel approach by a person using a wheel chair. There may be no fixed seats, bases or enclosures that would impede passage by a person in a wheel chair. If the reach to the telephone is forward it may be no more than a 48 inches high forward reach and a minimum of a 15 inch low forward reach. Where the clear floor space allows a parallel approach the high side reach may be no more than 54 inches and the low side reach may be no more than must be at least 9 inches.

In cafeterias where there are fixed tables at least 5% but not less than one must be accessible. Where there is a dining counter a portion must be accessible. Where there are smoking and non-smoking areas the accessible tables should be distributed proportionally between them. Where food is served at counters exceeding 34 inches in height a 60 inch portion must be provided that is accessible. Alternatively an accessible table may be provided near by. There must be adjacent clear floor space of no less than 30 inches by 48 inches on an accessible route. Knee space at tables and counters must be at least 27 inches high, 30 inches wide and 19 inches deep. The tops of accessible tables and counters must be from 28 to 34 inches above the floor. In new construction all dining areas, including those that are raised or sunken must be accessible.

Food service lines must have a minimum clear width of at least 36 inches with a 42 inch width being preferred. Tray slides may not be mounted more than 34 inches above the floor. Where there are self service shelves at least 50 percent must be within prescribed reach ranges. Self service shelves for tableware, condiments and dishware must also be within prescribed reach ranges.

Assembly areas must provide accessible seating that gives disabled individuals choices in location, price and line of sight comparable to those offered to members of the general public. Accessible seating must be on an accessible route. At least one companion fixed seat must be provided next to each wheel chair seating space. In assembly areas having a seating capacity greater than 300, wheel chair seating must be in more than one location. Wheel chair seating must be on a level surface. Wheel chair seating must be on an accessible route to performance areas and other locations used by performers such as stages, locker rooms and dressing rooms. Augmented listening must be provided in a manner suitable to the particular facility.

In new construction at least one wheel chair space must be provided for each fixed seat, up to the first 50 fixed seats. The required number increases on a scale requiring six wheel chair spaces where there are between 301 and 500 fixed seats. For over 500 fixed seats there must be six seats plus one for every additional 500 fixed seats. In addition at least one percent of aisle seats, but not less than one aisle seat should have no armrest or a removable armrest.

Bragdon v. Abbott was an action by a female HIV (apparently "asymptomatic") patient against a dentist who refused to fill her cavities in his office. He offered to treat her in the hospital at no extra cost except that the patient would have to pay the hospital charges.

The Court held that HIV is a disability as it is a physical impairment and it substantially limits the major life activity of reproduction and child bearing. It is a physiological disorder affecting the reproductive system within the meaning of the regulations. The court held that it is an impairment from the moment of infection as it immediately begins to affect the white blood cells and because of the severity of the disease. The Court found no basis for confining the term "major life activities" to those with a public, economic or daily aspect. The major life activity of reproduction of a woman with HIV is limited in two ways. First, it endangers the male partner with a significant risk of infection. Second, the infected woman risks infecting the child. While there is not an utter inability to engage in reproduction and child bearing there is a significant impairment to those functions.

In dealing with the issue of whether treating the patient in the office poses a significant risk to others the Court held that it would not defer to the judgement of the health care provider but that an objective standard should be applied. The case was remanded to the appellate court to determine if there is a triable issue of fact as to whether treating the plaintiff in the dentists offices poses a significant risk to the health or safety of others.

Casey Martin v. The PGA Tour, Inc., was an action by a professional golfer with a circulatory disorder that caused a malformation in his left leg. Because of this condition he suffers considerable pain which disables him from walking for extended periods. Martin requested the PGA to except him from its rule requiring players to walk so that he could compete in the Nike tour. He qualified for the Nike tour when a temporary injunction allowed him to use a golf cart in a qualifying round. The district court entered a permanent injunction allowing Martin to use a golf cart on the Nike tour and in qualifying rounds for other tours. The Ninth Circuit affirmed the injunction.

The first issue was whether the tour is a place of public accommodation. Title III states that a golf course is a public accommodation. Places of entertainment are also public accommodations.. The court found that the fact that tournament play is limited to a few of the very best golfers does not deprive it of the character of a public accommodation.

The second issue was whether the use of a golf cart is a reasonable accommodation or whether it will fundamentally alter the nature of the goods or services, i.e. the Nike tour. The court held it would not. Martin would still have to walk 25% of the course and that pain. The pain of getting in and out of his cart causes him greater fatigue than walking causes the other participants. The court upheld the district court's fact finding that the fatigue factor is not a significant element of the competition.

In Ford Olinger v. United States Golf Association, 203 F. 2d 1001 (7^th Cir. 2000) the Seventh Circuit reached a different result. Olinger, like Marten, is a professional golfer whose ability to walk is impaired by a degenerative condition. He sought to use a golf cart to qualify for the United States Open. The rules do not prohibit golf carts but they give broad discretion to the competition committees to determine the conditions for an event.

The court declined to decide if the tournament is a place of public accommodation. Instead it ruled for the Association on the basis that the use of a cart would "fundamentally alter the nature" of the competition. The court cited Southeastern Community College v. Davis, which held that under section 504 of the Rehabilitation Act a school was not required to permit a deaf nursing student to complete its nurses training program were she could not perform all of the program's requirements. The court found that waiving the requirements for the plaintiff would fundamentally alter the nature of the program. The court also commented favorably on the testimony of former U.S. open winner, Ken Venturi, that physical and mental fatigue is an integral part of tournament golf. The court reasoned that it should leave setting the rules to the Association.

In Meyers v. The City of Jacksonville, (Fla. 1^st DCA 2000) the plaintiff, a wheelchair user, sued the city in a common law personal injury action alleging injuries as a result of a fall in a city office building. The plaintiff claimed that his injuries resulted from the failure of the city to provide a ramp to afford wheelchair access to the elevated entrance of the building. The city had extensively renovated the building after the passage of the ADA and FADA. The court found that the city had a duty to comply with the ADAAG regulations as adopted by FADA. Its failure to do so was found to be a breach of a duty owed to the plaintiff. The court cited ADAAG � 4.1.1 - 4.1.3 as the source of the duty of the city to comply with the regulations when it makes alterations to a building. It also cited ADAAG � 4.1.3(8)(a)(i) which requires at least 50% of a building's public entrances to be accessible, at least one of which must be at ground floor level. The plaintiff was not obliged to plead intent to injure. The court pointed out that the action was not statutory but rather one in common law negligence.

It is clear that Title III does not create a private cause of action for damages. The court in Jairath v. Dyer focused on this issue. It held that a federal court had no jurisdiction to hear a state law action by an HIV positive individual against a plastic surgeon who refused to operate on him. The plaintiff claimed that the duty of the surgeon to treat him under Title III gave rise to a damage claim under Georgia law. The court found that the fact that the state claim required interpretation of a federal law did not confer jurisdiction on a federal court to hear the claim

As indicated above the Ninth Circuit in Casey Martin v. The PGA Tour, Inc.,supra, found that tournament play in the PGA tour is a public accommodation. The court observed that golf courses are specifically identified as covered public accommodations in 42 U.S.C. �12181(7)(L). The court declined to compartmentalize the functions of a golf course into non-tournament play and tournament play.

In Stevens v. Premier Cruises, Inc., (11^th Cir. 2000) the plaintiff, a wheelchair user, was a passenger on the cruise ship of the defendant, a foreign corporation. She boarded the ship in Florida. In her Title III action she alleged failure to provide accessible paths of access from entrances of rooms to public areas of the vessel, lack of ADA approved signs at inaccessible routes indicating the location of accessible routes, doors that did not accommodate wheelchairs, lack of wheelchair accessible cabins and lack of proper emergency exit signs for wheelchair users.

The court found first that a cruise ship is a public accommodation. Although cruise ships are not listed as public accommodations in Title III they have many of the covered facilities such as theaters, places of lodging, restaurants, bars, retail stores, gift shops and gymnasiums. Second the court found that a foreign cruise ships sailing in American waters is covered by Title III.

The Federal Appellate Court for the Sixth Circuit found that broadcasts of National Football League ("NFL") games are not public accommodations withing the meaning of Title III in Stoutenboborough v. National Football League, et al. In that case individuals with hearing impairments complained about the "blackout rule" under which home football games are not permitted to be broadcast locally if they were not sold out 72 hours before the game. In addition to the NFL, the defendants included the Cleveland Browns football team, the National Broadcasting company and several television stations. The plaintiffs asserted that under Title III as well as various statutes that the blackout rule illegally deprived the hearing impaired of equal access to the blacked out football games. The court emphasized that the blackout rule was not discriminatory as it applied equally to the hearing impaired and the non-hearing impaired.

In finding the television broadcasts were not public accommodations the Stoutenbouough court observed that the named defendants were not in any of the twelve categories listed as public accommodations in 42 USC �12181(7). The court noted that Title III deals with "places" of public accommodation, which the defendants were not. The court determined that home broadcast of television games are also not places of public accommodation.

A physician's staff privileges at a hospital were found to be a public accommodations in Menkowitz v. Pottstown Memorial Medical Center, et al.. The plaintiff in that case was a physician with attention deficit disorder. His staff privileges were suspended for six months by the hospital following alleged infractions of hospital policies. The court concluded that Title III coverage is not limited to patrons of the hospital. It includes physicians with staff privileges, who are not employees of the hospital. The court held that a doctor with staff privileges is a covered "individual" with a disability who can not be denied "the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." The court found that the individuals protected under Title III are not limited to customers of a facility or members of the general public. The court also held that the plaintiff's allegations were sufficient to support a claim under section 504 of the Rehabilitation Act.

There is no doubt that a building or office where insurance is sold is a place of pubic accommodation. The federal appellate courts that have considered the question do not agree on whether the product sold by insurance companies is a pubic accommodation and therefore subject to Title III. The cases come up in the context of health or disability insurance policies that put a a lower cap on the damages payable for mental conditions than for physical ailments or that allow a lower limit on payments for AIDS related illness than for other conditions.

Carparts Distribution Center, Inc. v. Automotive Wholesalers of New England, Inc., et al., involved an employer's health insurance policy that limited AIDS benefits to $25,000 while allowing a greater cap of one million dollars on benefits for other ailments. The defendants were the sponsor and administrator of a self-funded medical plan of automotive wholesalers. The court held that insurance coverage is a proper subject of a title III action. It found that the designation of an insurance office as a place of public accommodation in Title III included the product sold by insurance companies. The public accommodation is not limited to the physical structure of a selling organization. The court further supported its argument with reference to the "insurance safe harbor" provisions of Title III that allows insurers to take into account "...risks that are based on or not inconsistent with State law." The safe harbor defense is not permitted if the insurance plan is a subterfuge to evade the purposes of the ADA. The court reasoned that the safe harbor provision would not be necessary if insurance is not covered by Title III. The court observed in a footnote that this reasoning would not apply to an insurance company that merely provides the benefits to which the employer subscribes.

Additionally the Carparts court found that the defendants were also liable as employers under Title I. Although they were not employers in the conventional sense of the term they were acting as the agent of the employer within the meaning of Title I in providing health benefits to employees.

The Federal Appellate Court for the Second Circuit agreed with Carparts that the provisions of insurance policies are subject to the requirements of Title III in Pallozzi v. Allstate Insurance Co., Inc. In that case the plaintiffs complained about the insurer's refusal to sell them life insurance because of their mental disabilities. Unlike most other Title III cases dealing with insurance Pallozzo involved outright refusal to sell a policy rather than placing different conditions on the provisions of a policy for certain disabilities. Like the First Circuit the Second Circuit reasoned that if Title III did not regulate insurance policies there would be no need for the ADA to include the safe harbor provision.

The Pallozzi decision also deals with the contention that the McCarran-Ferguson Act bars regulation of insurance by Title III. That statute provides:

No Act of Congress shall be construed to invalidate, impair or supercede any law enacted by any state for the purpose of regulating the business of insurance...unless such Act specifically relates to the business of insurance.

The court found that Mcarran-Ferguson to be inapplicable to Title III, reasoning that the ADA is a statute relating to insurance. In addressing the applicability of the safe harbor provision the court ruled that a plaintiff must plead and prove that an insurance company's practices are inconsistent with state law or a subterfuge to evade the purposes of the ADA. It held that the plaintiffs had adequately plead that Allstate could not rely on the safe harbor provisions.

In Parker v. Metropolitan Life Insurance Co., et al., an action involving an employer provided long-term disability plan, the Sixth Circuit disagreed with the views expressed in Carparts and Pallozzi. The plan provided benefits to age 65 for individuals who were disabled due to physical reasons but limited benefits to 24 months for persons disabled for mental illnesses unless they were hospitalized for the disorder. The court reasoned that the plan in question, being offered through an employer, was not obtainable at a place of public accommodation such as an insurance office. The court further ruled that Title III does not govern the content of insurance policies. It reasoned that Title III deals with physical access to goods that are sold, not the goods themselves. The court also found that while Title III prohibits treating people with disabilities differently from those who are not disabled it does not require treating people with different disabilities differently from each other. It adopted the reasoning of the Supreme Court in Taylor v. Turnage, in which it was held that the Rehabilitation Act did not preclude treating individuals with different handicaps differently from each other. (see also Lenox v. Healthwise of Kentucky, Ltd. 149 F.3d 453 (6^th Cir. 1998).

In Ford v. Schering-Plough Corp., a case involving a long-term disability policy with limits similar to those in Parker, supra, the Third Circuit also disagreed with the view expressed in Carparts. It concurred with Parker that a public accommodation is a place and not the contents of the product provided at a place. The court's reasoning as to the application of the safe harbor provision is similar to that in Pallozzi. It found that the allegation that there is a disparity in insurance benefits does not place a burden on the insurance company to justify its coverage. The Third Circuit departed from the Pallozzi's view of the applicability of the McCarran-Ferguson Act. It concluded that the ADA is not an act relating to the business of insurance and thus it can not supercede state insurance laws.

In Doe v. Mutual of Omaha Insurance Co., the Seventh Circuit found that the product sold by a place of public accommodation is not regulated where the plaintiff complained that the cap on insurance benefits for AIDS was less than for other disabilities. In response to the argument that there would be no need for the safe harbor provision if insurance policies are not covered the court reasoned that the provision was a fail-safe to assuage fears of the insurance industry that it might be found that the content of insurance policies is regulated by the ADA. The Seventh Circuit also concurred with the view in Schering-Plough, supra, that the McCarran-Ferguson Act prohibits an interpretation of the ADA that would allow federal courts to regulate the content of insurance policies.

The Federal Appellate Court for the Second Circuit considered the safe harbor provision in Leonard v. Israel Discount Bank of New York. In Leonard the plaintiff complained of an insurance policy's shorter cap on disability benefits for individuals disabled because of mental illness than on those with physical disabilities. The plaintiff contended that the insurance plan was a subterfuge to evade the purposes of the ADA. The court held that as a matter of law a plan that was in effect well before the enactment of the ADA could not be a subterfuge. In such a case there would not be the intent to evade the ADA that would be requisite to finding a subterfuge. The court further ruled that an insurer does not have to establish that a plan is based on sound actuarial principles to prevail under the safe harbor defense. It reasoned that the term "sound actuarial principles" is not mentioned anywhere in the safe harbor provision. In order to prevail on the safe harbor defense a plan must merely have been in place prior to the ADA and be consistent with state law. See also Fitts v. Federal National Mortgage Association, et al., 19 NDLR 234, No. 99-5327 (D.C. Cir. 2001) for like reasoning with respect to the safe harbor defense.

The plaintiff in Caruso v. Blockbuster- Sony Music Entertainment Center was a wheelchair user who attended a concert at defendant's facility. He complained that the theater did not afford line of sight visibility over standing patrons. The court held that the regulations' requirement of line of sight visibility had to do with dispersal of seating rather than line of sight over standing patrons. In so finding the court rejected the Department of Justice's interpretation of it own regulation as set forth in a 1994 supplement to its Technical Assistance Manual (the "TAM") finding it inconsistent with the interpretation given to the applicable regulation by the Architectural and Transportation Barriers Compliance Board (the "Access Board"). The Department had adopted the Access Board standard verbatim. The court held that the view expressed by the Department in the TAM supplement amounted to a change in a substantive rule. The Administrative Procedure Act requires notice and an opportunity for interested parties to comment on the repeal or amendment of an existing regulation or the formulation of a new regulation. The court commented that if the Department wishes to establish its TAM interpretation of Standard 4.33.3 it must adhere to the requirements of the APA.

A contrary result was reached in Paralyzed Veterans of America v. D.C. Arena, where the D.C. Circuit held that the Department was not bound by the interpretation given the language by the Access Board. It was free to promulgate its own different interpretation as it had never given an authoritative interpretation to the language previously. The court also found that the interpretation of the Department did not amount to substantive rule requiring it to follow the APA. The Department had merely given a plausible interpretation to the language of the rule.

The plaintiff in Caruso also complained that the lawn areas at the concert facility were not wheel chair accessible. The court held that the facility was required to provide lawn access. It found that the only defense to not providing lawn access in a newly constructed facility would be that it is structurally impractical. The court held that the structurally impractical defense has very limited applicability. The court cited with approval the regulation stating that the structurally impractical defense is only intended for "...those rare situations when the unique characteristics of terrain prevent the incorporation of accessibility features." It was further held that accessibility to the lawn area did not mean that accessible seating must be provided in the areas where there was no fixed seating. Additionally the court found that the defendant's providing additional wheel chair locations in its pavillion did not justify the failure to provide wheelchair access to the lawn areas under ADAAG's "Equivalent Facilitation" standard. It reasoned that equivalent facilitation did not override the explicit Title III requirement of equal access.

In order to maintain an action under Title III a plaintiff must show the likelihood that he or she will suffer some injury if the violation in question is not corrected. This is illustrated in Steger v. Franco, Inc., in which multiple plaintiffs sought compliance with Title III against the owner of a building that provided office and retail space. Four of the plaintiffs were found to have no standing to sue as they had never visited the building before the complaint was filed. The possibility that they might visit the building in the future did not give them standing to sue. The court reasoned that in order to maintain an action one must be able to show an injury or the imminent threat of an injury. There was no injury where the plaintiffs had not visited the facility.

One plaintiff, who was blind, was found to have standing to sue as he had been unable to access the restroom in a coffee shop in the building due to lack of ADA-compliant signage. That plaintiff also had standing to sue for violations that would affect blind individuals in locations in the building which he had not visited. He was, however, denied standing to sue with respect to violations that would not affect the blind as he was not injured by those violations.

As indicated previously Title III specifically requires those who administer various examinations to make the examinations accessible to individuals with disabilities in order to test the skill for which the testing is intended rather than reflecting the individual's disability. It is the practice of some testing organizations to flag the results of those who receive accommodations to indicate that the individual received an accommodation when taking the examination. This practice was challenged in Doe v. The National Board of Medical Examiners by a medical student who suffered from multiple sclerosis. The student had been allowed additional time to take an examination given by the National Board of Medical Examiners (the "NBME"). A passing grade on the examination is necessary before one can practice medicine in the United States. The results are also commonly reviewed by hospitals before offering residencies to medical school graduates. The test results that the hospital receives indicate that the individual was accommodated when taking the examination.

The appellate court reversed the district court's order temporarily enjoining the NBME's flagging of test results. After determining that identifying the plaintiff as a disabled individual made the necessary showing of harm to give him standing to sue, the court reasoned that Title III makes no reference to flagging. The statute instead requires that examinations be offered in an accessible place and manner. The plaintiff was not denied access. The court however indicated that if on remand the plaintiff could produce evidence that his score was equivalent to those of individuals who were not accommodated or that the flagged scores would negatively influence those to whom they are reported the result might be different. The Third Circuit referred to its reasoning in Ford v. Schering-Plough, supra, that Title III deals with places of public accommodation. It also referred to its reasoning in Menkowitz v. Pottstown Memorial Hospital, supra, that it is necessary for a plaintiff to show a connection between a service and the actual place of accommodation.

In many cases Title III conditions its requirements on a rule of reason. What is reasonable is fact specific in individual cases. A number of case have denied plaintiffs' requests for modifications as not being reasonable. In Bercovitch v. Baldwin School, Inc. a preparatory school was found not to be required to accommodate a student with Attention Defici-Hyperactivity Disorder who continually disrupted its teaching regimen with inappropriate verbal outbursts, refusal to accept discipline, fighting with other students and swearing at teachers and other students. Citing Southeastern Community College v. Davis, supra, the court held that accommodating the plaintiff would call for substantial modification which would require it to lower its standards. It was not reasonable to relieve the plaintiff of the obligations of the school's disciplinary code which would have been a fundamental alteration of the school's academic program. See also Brandon v. KinderCare Learning Centers, Inc. holding that a non-profit day care center with a very limited budget would suffer an undue burden if required to provide a one-on-one Personal Care Attendant (a "PCA") for a four year old developmentally delayed child. The cost of an aid to care for the child would have been $200 per week whereas the child's tuition was $105 per week.

In Motalvo v. Radcliffe a karate school was not required to enroll a child with AIDS in the school's program of teaching "hard karate." In this type of training there is vigorous sparring with bleeding injuries being common. Thus enrolling the student in the school's regular program would have posed a significant threat to the health and safety of others. The only modification that would have allowed the plaintiff into the program would have been to change it to a softer style of training. This would have been a fundamental alteration of its program, which is not required.

In Staron v. McDonald's Corporation, an action brought by individuals who are allergic to smoke, the court found that making a restaurant completely smoke free was not per se unreasonable. The case was remanded to the district court for a fact specific determination of the issue.

Applies to all new or altered buildings private homes and condominiums. Since

and facilities, including those owned Garrett enforcement of Title III against state

FS �553.504(2) Restroom at grade level Private residences are not covered by Title III.

FS �553.504(4) Landings on ramps 4.8.4 Landing must be at least as wide as the

must have not less than 60 inches clear. ramp leading to it. Where ramps change direction the landing must be at least 60

must extend at least 18 inches beyond the bottom of the ramp segment and be parallel

those not protected by hand rails must not protected by handrails must have flared

have flared sides with a slope not sides with a slope not exceeding a ratio of 1 to

FS �553.504(8) Seating at food service 4.32.1-4.32.4 Seating and table must have

from the floor with � inch tolerance. 18 inches to the top of the toilet seat. Toilet

Portable or attached raised toilet seat shall not be sprung to return to a lifted

FS �553.504(11) Installation and placement 4.31.2 and 4.31.3 Clear floor space at least

of public telephones shall be in accordance 30 inches by 48 inches that allows either a

with the rules of the Florida Public Service forward or parallel approach by a wheel chair

the maximum high side reach is 54 inches and the low side reach no less than 9 inches.

FS �553.504(12) Design and construction Florida's requirements are in addition to the