By Marcus Wile, Orten Cavanagh Holmes & Hunt, LLC
The Americans with Disabilities Act (“ADA”) is a civil rights law enacted in 1990, and subsequently amended, with the aim to protect people with disabilities from discrimination. The ADA provides protections to disabled people in several domains including public accommodations, employment, transportation, communications, and government services. The domain of public accommodations is the area most potentially applicable to common interest communities in Colorado. As a threshold matter for discrimination under the ADA, a person must “(1) have a recognized impairment, (2) identify one or more appropriate major life activities, and (3) show the impairment substantially limits one or more of those activities.” Weil v. Carecore Nat., LLC, 833 F. Supp. 2d 1289, 1296 (D. Colorado 2011); 42 U.S.C. § 12102(1).
Public Accommodations
Title III of the ADA prohibits discrimination on the basis of disability in the activities of public accommodations. Pursuant to 42 USC § 12181(7), a place of public accommodation means a facility operated by a private entity whose operations affect commerce and fall within one of the twelve categories set forth in the regulation. Categories relevant here include: (1) places of lodging including inns, hotels, or motels, or facilities that offer similar amenities to the foregoing; (2) places of public gathering; (3) places of recreation; places of exercise. The categories listed in the regulation include representative examples of each that are meant to be illustrative, not exhaustive. Common interest communities are not generally considered places of “public accommodation” as facilities or amenities in the community that are generally restricted to residents and guests of residents and, therefore, are not subject to the provisions of the ADA. However, common interest communities can become subject to the ADA if the association opens its facilities to the public. Common examples of whencommunities may become subject to the ADA include:
If the community allows members of the public to use the pool or other recreational facilities by purchasing passes.
If the community allows schools, clubs or other organizations to use community facilities on a regular basis or leases the premises to them.
If the community maintains a rental office on the property that is open to the general public.
In the vast majority of typical cases, however, those facilities are not open to the public. Thus, the ADA would not apply. On the other hand, these facilities may be considered and treated as “public accommodations” and subject to the ADA if they are open and available to the “public” – i.e., individuals who are not residents, guests or invitees of residents living in the community. Each of the examples above would likely subject the Association to the mandates of the ADA, including modifying all such areas open to the public to comply with applicable ADA requirements and standards for accessible design.
Whether the Association uses the term “pool passes,” “pool licenses,” or “pool memberships” is immaterial.
The Americans with Disabilities Act Title III Technical Assistance Manual issued by the U.S. Department of Justice states that areas within a private residential community “qualify as places of public accommodation [and] are covered by the ADA if use of the areas is not limited exclusively to owners, residents and their guests”.
The Technical Assistance Manual illustrates this point by giving specific examples of facilities that are considered public accommodations, including the following:
ILLUSTRATION 1: A private residential apartment complex includes a swimming pool for use by apartment tenants and their guests. The complex also sells pool “memberships” generally to the public. The pool qualifies as a place of public accommodation.
ILLUSTRATION 2: A residential condominium association maintains a longstanding policy of restricting use of its party room to owners, residents, and their guests.
Consistent with that policy, it refuses to rent the room to local businesses and community organizations as a meeting place for educational seminars. The party room is not a place of public accommodation. The examples given are not exhaustive, and use of the term “memberships” when referring to the pool is inconsequential. Rather, the test to determine if ADA applies is whether access to the pool is limited exclusively to owners, residents and their guests. If not, the ADA will likely apply. The same general analysis would apply for non-physical spaces such as a community’s website.
Generally, if a facility or amenity is considered a “public accommodation,” it must be brought into compliance with the ADA’s accessibility standards and requirements. There are limited exceptions for buildings and/or facilities constructed before January 26, 1993. However, the ADA still requires the community to remove physical barriers where “readily achievable” for older facilities (i.e., those built before January 26, 1993). “Readily achievable” is defined under the ADA as “easily accomplishable and able to be carried out without much difficulty or expense.” Failure to remove barriers “where readily achievable” constitutes discrimination under the ADA.
While the ADA may not apply to your community, the Fair Housing Act (“FHA”) still may. If you have questions regarding your community’s obligations to permit reasonable accommodations or modifications, please consult your community’s attorney for specific guidance. Marcus Wile is an attorney with Orten Cavanagh Holmes & Hunt, LLC where he focuses on all manner of litigation matters in addition to general counsel representation of common interest communities. Marcus is a frequent speaker at educational events for community association boards of directors and managers and is a member of the CAI-RMC Editorial Committee.
