This article reviews the accommodations businesses and nonresidential landlords must make for disabled persons.

Providing access to nonresidential real estate

Under the Americans with Disabilities Act (ADA), an employer may not discriminate based on a disability against a qualified person with a disability who seeks employment. [42 United States Code §12112]

A broker is an employer if he has 15 or more employees each working day during a period of 20 or more calendar weeks occurring in either the current or the preceding calendar year. [42 USC §12111(5)(A)]

For the purposes of the ADA, employees include all representatives of the broker, such as broker associates, sales agents, managers, administrative personnel and call center employees.

A disability includes:

  • a physical or mental impairment that limits one or more of a person’s major life activities;
  • a record of such an impairment; or
  • being regarded as having such an impairment. [42 USC §12102(2)]

A disabled person is considered a qualified person with a disability if the person can perform a job with or without reasonable accommodation by the employer.

Further, a person with a disability cannot be discriminated against in the offering of public services, or in places of public accommodation or commercial (nonresidential) facilities. [42 USC §§12132; 12182(a)]

Public accommodations and commercial facilities

Places of public accommodation and commercial facilities must be designed, constructed and altered in compliance with the ADA. [28 Code of Federal Regulations §36.101]

Real estate is considered a place of public accommodation if it is owned, leased or operated by a private entity and the operation affects commerce. Thus, a place of public accommodation includes:

  • an inn, hotel, etc., unless it contains five or fewer rooms for rent and is occupied by a resident manager;
  • establishments serving food or drink (i.e., restaurants or bars);
  • places of exhibition, entertainment or public gathering (i.e., theaters, stadiums, convention facilities);
  • sales or other service establishments (i.e., grocery stores, clothing stores, dry cleaners, brokerage offices, insurance offices, doctors offices);
  • public transportation depots;
  • a place of public display or collection (i.e., museums, libraries);
  • places of recreation (i.e., zoos, parks);
  • places of education;
  • social service center establishments (i.e., day care centers, senior citizen centers); and
  • places of exercise or recreation (i.e., gymnasiums, health spas, golf courses).

A commercial facility is:

  • intended for nonresidential use; and
  • its operation affects commerce. [42 USC §12181]

Commerce is travel, trade, traffic, transportation or communication:

  • among several states;
  • between a foreign country or any territory and a state; or
  • within a state but through another state or foreign country. [42 USC §12181]

Any person who owns (landlords) or operates (businessmen) a place of public accommodation or a commercial facility may not discriminate on the basis of a disability. [42 USC §12182(a)]

Discrimination includes:

  • use of eligibility requirements that screen out individuals with disabilities;
  • failure to make reasonable modifications in policy, practices or procedures necessary to provide accommodations;
  • failure to take the steps necessary to ensure a person with a disability is not excluded, denied services, segregated or treated differently in the accommodations offered;
  • failure to remove architectural and communication barriers which are structural in nature and where such removal is readily achievable; and
  • with respect to a facility that is altered, failing to make alterations which provide accessibility to persons with disabilities. [42 USC §§12182(b)(2)(A); 12183]

Both a landlord who owns a place of public accommodation and a tenant who operates a place of public accommodation are subject to the ADA. In a lease provision, the landlord and tenant may agree who is responsible for complying with the ADA. [28 CFR §36.201]

Removal of architectural and communication barriers

A place of public accommodation is required to provide necessary aids, such as telecommunication devices (TDD), closed-caption decoders, etc., to ensure effective communication with individuals with disabilities. This rule is subject to a reasonableness standard. Thus, compliance is not required if it would place an undue burden or significant difficulty or expense on the public accommodation. [28 CFR §36.303]

For example, a public accommodation is not required to use telecommunication devices for the deaf (TDDs) for receiving or making telephone calls incidental to operations. [28 CFR §36.303(d)]

However, places of public accommodation providing lodging in which televisions are placed in five or more guest rooms must provide closed-caption decoders for the hearing impaired on request. [28 CFR §36.303(e)]

A place of public accommodation must remove architectural barriers which limit access for disabled persons.

Examples of the removal of architectural barriers include:

  • installing ramps;
  • making curb cuts for wheelchair access;
  • rearranging furniture; and
  • widening doors. [28 CFR §36.304(b)]

Penalties for violation

Any person who has been discriminated against based on their disability may seek a court order to stop the discriminatory activity or practice. Further, the individual may file a claim with the Attorney General who may seek monetary and civil penalties.

Civil penalties may be assessed against an individual who discriminates based on a person’s disability in the amount of:

  • $50,000 for the first violation; and
  • $100,000 for each subsequent violation. [42 USC §12188(b)(2)(C)]

Also, portions of residential real estate used as a place of public accommodation, and any portion used for both residential purposes and as a place of public accommodation, are subject to the ADA. The portion of the real estate used exclusively for residential purposes is controlled by The Federal Fair Housing Act. [28 CFR §36.207]