AMERICANS WITH DISABILITIES ACT
by Minh N. Vu
December 1, 2010
New ADA rules on the way
Title III of the
Americans with Disabilities Act imposes a variety of requirements on casinos relating
to guests with disabilities. There will be even
more requirements as of March 15, 2011, when new regulations published this year by the Department of Justice
take effect.
The “2010
Regulation,” as it’s known, changes the current accessibility requirements for
new and existing casinos, imposes new requirements for hotel reservations and
ticketing policies, clarifies requirements for effective communication with
disabled customers and requires that power-driven mobility devices of every
kind be accommodated unless it can be demonstrated that such devices cannot be
operated within legitimate safety requirements.
A companion set of “2010 Standards” retains
the existing requirements for many elements, but they do change the
requirements for some others, such as accessible guest rooms, toilets,
vanities, assembly areas, reach ranges, sales and service counters, fitting
rooms, valet parking areas, public entrances and van-accessible parking. The
new Standards also set requirements for many elements in recreational
facilities for the very first time.
Under existing ADA rules, facilities
constructed prior to Jan. 26, 1993, have an ongoing obligation to remove
architectural barriers where the removal is “readily achievable,” even in the
absence of any alterations to the facility. “Readily achievable” is considered
the least demanding standard and takes into account the difficulty and cost of
the work in addition to the public accommodation’s financial resources. Any alterations made after Jan. 26, 1992, have to
comply, to the maximum extent feasible, with the “ADA Standards for Accessible
Design” set forth in current regulations. Finally, any
facilities constructed after Jan. 26, 1993, have to comply with earlier
standards promulgated in 1991 unless compliance is structurally impracticable.
So from now until March 15, 2012, casinos can comply with either the 1991
Standards or the 2010 Standards in removing architectural barriers, making
alterations and building new facilities. As of March 15, however, the 2010
Standards will apply for all of these activities. Any element that complies
with the 1991 Standards will be in a safe harbor and will not have to be made
to comply until it is altered. Any element that should have complied with the
1991 Standards but does not, as of March 15, will be measured against the 2010
Standards.
Note also that the 2010 Standards contain
many requirements for areas not covered by the 1991 Standards, such as pools,
spas, saunas, steam rooms, gym equipment, golf courses and boating facilities.
There is no safe harbor for these elements, and all of them must be brought
into compliance with the 2010 Standards by March 15, 2012, unless compliance is
not, by definition, “readily achievable”. Most facilities will likely have to
procure special lifts in order to provide an accessible means of entry into
pools and spas. They will have to rearrange and possibly remove equipment in
their fitness rooms. Saunas and steam rooms may have to be retrofitted in order
to allow access for wheelchairs and to provide accessible bench and turnaround
space.
Compliance with new hotel reservation rules
will be among the most difficult. By March 15, 2012, hotels will be required
to: 1) ensure that individuals with disabilities can reserve accessible guest
rooms during the same hours and in the same manner as individuals who do not
need accessible guest rooms; 2) identify and describe accessible features in
enough detail to allow individuals with disabilities to independently assess
whether a facility meets their needs; 3) ensure that accessible guest rooms are
held for use by individuals with disabilities until all other rooms of that
type have been rented and the accessible room requested is the only remaining
room of that type; 4) reserve specific types of accessible guest rooms
requested by guests and block and remove those rooms from the system once
reserved; and 5) guarantee that a specific accessible room that has been
reserved is held for the reserving customer. For many gaming companies these
new requirements will require changes to existing reservations systems, and
their implementation will require significant operational and IT system
changes, so the work should begin as soon as possible.
The 2010 Regulation also contains new rules
governing how accessible seats in entertainment venues are to be sold and
priced relative to non-accessible seats. These rules become effective March 15,
2011. Among the most noteworthy is the rule requiring public accommodations to
hold all accessible tickets until they are the last to be sold in their
respective price categories or designated seating areas.
The 2010 Regulation’s definition of
“power-driven mobility devices” is broad and encompasses “any of a large range
of devices powered by batteries, fuel, or other engines” used for locomotion.
It lays out five factors that casinos and other public accommodations can
consider in determining whether to allow these devices into their facilities:
1) the nature of the vehicle; 2) the volume of pedestrian traffic at various
times; 3) the facilities’ design and operational characteristics; 4) the risk
of serious harm to the immediate environment or natural or cultural resources;
and 5) whether legitimate requirements can be imposed to permit safe operation.
The Regulation provides no guidance on how these factors are to be applied in
specific contexts and does not rule out the possibility that a device powered
by fuel might be used indoors on the theory that technological developments
might make them viable for indoor use in the future.
In a somewhat surprising change of policy,
the DOJ decided to limit the designation of “service animal” to dogs and
miniature horses. The current regulation states that any type of animal will do
as long as it has been trained accordingly. Before casino owners and operators
start revising their service animal policies, however, they should check the
laws of the state in which their facilities are located. In Nevada, for
example, any type of animal can be a service animal, thereby negating any of
the benefits of the new federal regulation.
Gaming establishments have always had an
obligation to ensure that their customers with sight or hearing disabilities
can communicate with them. The 2010 Regulation makes clear that effective
communication must be ensured not only with the customer but with a customer’s
companion with a disability. It requires the casino to ask the person with a
disability how he or she wants to communicate. It also specifies requirements
for “video remote interpreting” and makes clear that calls made by customers
with speech or hearing disabilities using relay services must be accepted like
all other calls. Under the current administration, the DOJ has stated that the
ADA requires public accommodation Web sites to be accessible to people with
disabilities even though the DOJ has not issued any regulations setting the
accessibility standards for them. Casinos can expect to pay hundreds of
thousands, if not millions of dollars, to analyze and bring their Web sites
into compliance once a set of standards is adopted.
Why comply? Compliance results in greater
accessibility and greater customer satisfaction, particularly in light of the
growing population of older casino guests. Moreover, although there is no
precedent for shutting down a casino for ADA Title III violations, there can be
serious consequences for non-compliance. People with disabilities or groups
that represent them can bring individual lawsuits or class actions. If
successful, litigants can obtain an order from a court requiring extensive
retrofits, operational changes and the payment of substantial attorneys’ fees.
Unhappy guests can also complain to the Department of Justice, which could
result in a full compliance review of facilities nationwide and result in
millions of dollars of retrofits.
There are, therefore, good reasons to take
steps now to comply with the new rules.
About the Author
Minh N. Vu is a partner in the Washington, D.C., office of the
law firm of Seyfarth Shaw, specializing in disability discrimination issues in
the hospitality and retail industries. Vu oversaw enforcement of the Americans
with Disabilities Act at the Department of Justice before returning to private
practice to advise and defend businesses against Title III ADA lawsuits and
government investigations. She also is ADA counsel for the American Hotel &
Lodging Association. She can be reached at mvu@seyfarth.com.
Minh N. Vu
mvu@seyfarth.com
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