Issue link: https://read.dmtmag.com/i/146145
COMMUNITY LAW ADA Claims, Is There A Target On Your Back? BY JOHN H. PENTECOST & CHRISTOPHER R. ELLIOTT On July 26, 1990, President Bush signed ever, there can still be considerations of "reainto law the Americans with Disabilities Act sonable accommodation" and "readily achiev("ADA"), The Americans with Disabilities able barrier removal" under the ADA that Act Accessibility Guidelines (the "1991 Regu- could require a park owner to make modificalations") were shortly thereafter developed to tions to existing structures and to make existing guide new construction and alterations under- buildings "accessible" to the disabled. There taken by covered entities and established the may be no "grandfathering in" under these prominimum requirements for "accessibility" for visions of the ADA. In addition, if the park has disabled persons in buildings and facilities and undergone substantial alterations/renovations, in transportation vehicles. After more than this could also trigger ADA compliance. A twenty years, the Department of Justice imple- mobile home park owner might also ask "If my mented new regulations, which became park needs to comply with ADA issues, then mandatory in 2012 (the "2012 Regulations.") does the park have to comply with the 1991 Your state may have Regulations or the 2012 passed parallel laws, Regulations?" Once Keep in mind that again, the answer is "it which could increase the protection of individuals depends." There is a the ADA is a civil rights broad with disabilities, e.g., "grandfather" the Unruh Act in Caliclause that exempts all law, which addresses building elements confornia. However, this article focuses on Federal structed in compliance a number of subjects, with the 1991 RegulaADA compliance. Keep in mind that the ADA is tions until those elements but this article focuses are subject to a planned a civil rights law, which addresses a number of alteration. on accessibility (no subjects, but this article So--is a mobile home focuses on accessibility park a "place of public longer called "handi- accommodation" or not? (no longer called "handicap") issues only. The ADA defines a cap") issues only. A mobile home park "public accommodation" owner might ask, "How to be "a private entity about my pre-existing park, does it need to that owns, leases (or leases to), or operates a comply with ADA issues?" Answer: "It de- place of public accommodation." Examples of pends." If your mobile home park pre-dates the places of "public accommodation" include ADA statute, and the Park has not gone places of lodging; establishments serving food or through any significant renovations (deter- drink; places of exhibition or entertainment; mined on a case-by-case basis), then the park places of public gathering; sales or rental estabmay be "grandfathered in" in most cases. How- lishments; service establishments; stations used AUGUST 2013 22 THE JOURNAL for public transportation; places of public display or collection; places of public recreation; places of public education; social service center establishments; and places of exercise or recreation. Does a mobile home park fit within these descriptions? Based on discussions with ADA experts, the typical mobile home park does not appear to "fit" under any of the enumerated examples of a "public accommodation," assuming the park's facilities are only open for the sole use and enjoyment of the park's residents, rather than the "general public." In some cases, however, a park's clubhouse and office could be determined to be "public accommodations" as they are generally "opened to the public." In addition, the park's office is necessarily "opened to the public" as persons, not otherwise residents of the park, are allowed in and, in fact, are invited in to inquire about available spaces and/or mobile homes in the park. One issue which has been "rearing its ugly head" recently in connection with what are referred to as "drive-by" ADA lawsuits is the inadvertent conversion of a "non-public" accommodation to a "public" accommodation. For example, if the park clubhouse is not open to the general public, but the park allows the clubhouse to be used as a polling station for elections, or for classes for the local college, or for swimming lessons in the pool, the park may have inadvertently converted the area to a "public" accommodation and will be required to comply with the ADA for the impacted area, e.g., pool or clubhouse. Even the "innocent" request by one person to use the "private" restroom at the management office could trigger thousands of dollars in improvements to make the restroom "accessible".