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Chapter 1: Coverage

Italicized text was added to the original Title III Technical Assistance Manual through supplements issued in 1993 and 1994.

Regulatory references: 28 CFR 36.102-36.104.

1.2000 Public accommodations.

The broad range of title III obligations relating to "places of public accommodation" must be met by entities that the Department of Justice regulation labels as "public accommodations." In order to be considered a public accommodation with title III obligations, an entity must be private and it must --

a place of public accommodation.

What is a place of public accommodation? A place of public accommodation is a facility whose operations --

Affect commerce; and

Fall within at least one of the following 12 categories:

  1. Places of lodging (e.g., inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms);
  2. Establishments serving food or drink (e.g., restaurants and bars);
  3. Places of exhibition or entertainment (e.g., motion picture houses, theaters, concert halls, stadiums);
  4. Places of public gathering (e.g., auditoriums, convention centers, lecture halls);
  5. Sales or rental establishments (e.g., bakeries, grocery stores, hardware stores, shopping centers);
  6. Service establishments (e.g., laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals);
  7. Public transportation terminals, depots, or stations (not including facilities relating to air transportation);
  8. Places of public display or collection (e.g., museums, libraries, galleries);
  9. Places of recreation (e.g., parks, zoos, amusement parks);
  10. Places of education (e.g., nursery schools, elementary, secondary, undergraduate, or postgraduate private schools);
  11. Social service center establishments (e.g., day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and
  12. Places of exercise or recreation (e.g., gymnasiums, health spas, bowling alleys, golf courses).

Can a facility be considered a place of public accommodation if it does not fall under one of these 12 categories? No, the 12 categories are an exhaustive list. However, within each category the examples given are just illustrations. For example, the category "sales or rental establishments" would include many facilities other than those specifically listed, such as video stores, carpet showrooms, and athletic equipment stores.

What does it mean for a facility's operations to "affect commerce"? The phrase "affect commerce" is a constitutional law concept frequently used in Federal statutes enacted pursuant to Congress' power to regulate interstate commerce. Some factors to examine in determining whether a facility's operation affects commerce are:

(a) Whether the facility is open to out-of-State visitors;

(b) Whether the products it exhibits or sells originated out of State, or have traveled through other States;

(c) Whether facilities of this kind, in the aggregate, would affect interstate commerce.

ILLUSTRATION: A private restaurant, located near an interstate highway, serves customers who come from other States and offers food that contains ingredients grown or processed in a different State. This restaurant's operations affect commerce because of any one of the following factors, independently: (a) it serves out-of-State customers; (b) it serves products that originated out of State; or (c) the restaurant industry as a whole affects interstate commerce.

What if a private entity operates, or leases space to, many different types of facilities, of which only relatively few are places of public accommodation? Is the whole private entity still a public accommodation? The entire private entity is, legally speaking, a public accommodation, but it only has ADA title III obligations with respect to the operations of the places of public accommodation.

ILLUSTRATION: ZZ Oil Company owns a wide range of production and processing facilities that are not places of public accommodation. It also operates a large number of retail service stations that are places of public accommodation. In this case, ZZ Oil Company would be a public accommodation. However, only its operations relating to the retail service stations are subject to the broad title III requirements for public accommodations. The other facilities, however, are commercial facilities and would be subject only to the requirements for new construction and alterations.

Do both a landlord who leases space in a building to a tenant and the tenant who operates a place of public accommodation have responsibilities under the ADA? Both the landlord and the tenant are public accommodations and have full responsibility for complying with all ADA title III requirements applicable to that place of public accommodation. The title III regulation permits the landlord and the tenant to allocate responsibility, in the lease, for complying with particular provisions of the regulation. However, any allocation made in a lease or other contract is only effective as between the parties, and both landlord and tenant remain fully liable for compliance with all provisions of the ADA relating to that place of public accommodation.

ILLUSTRATION: ABC Company leases space in a shopping center it owns to XYZ Boutique. In their lease, the parties have allocated to XYZ Boutique the responsibility for complying with the barrier removal requirements of title III within that store. In this situation, if XYZ Boutique fails to remove barriers, both ABC Company (the landlord) and XYZ Boutique (the tenant) would be liable for violating the ADA and could be sued by an XYZ customer. Of course, in the lease, ABC could require XYZ to indemnify it against all losses caused by XYZ's failure to comply with its obligations under the lease, but again, such matters would be between the parties and would not affect their liability under the ADA.

If the owner of a building is not covered by the ADA, is it possible for a private tenant to still have title III responsibilities? Yes. The fact that a landlord in a particular case is not covered by the ADA does not necessarily negate title III's coverage of private entities that lease or operate places of public accommodation within the facility.

ILLUSTRATION: A Federal Executive agency owns a building in which several spaces are rented to retail stores. Although Federal executive agencies are not covered by the ADA, the private entities that rent and operate the retail stores, which are places of public accommodation, are covered by title III.

Is a bank that acquires ownership of a place of public accommodation through foreclosure subject to title III? Yes. Any owner of a place of public accommodation is covered as a public accommodation regardless of the intended or actual duration of its ownership.

Can a place of public accommodation be covered by both the ADA and the Fair Housing Act (FHA)? 

Yes. The analysis for determining whether a facility is covered by title III is entirely separate and independent from the analysis used to determine coverage under the FHA. A facility can be a residential dwelling under the FHA and still fall in whole or in part under at least one of the 12 categories of places of public accommodation.

ILLUSTRATION: LM, Inc., a private, nonsectarian, nonprofit organization operates a homeless shelter permitting stays ranging from overnight to those of sufficient length to result in coverage as a dwelling under the FHA. Because it permits short-term, overnight stays, the shelter may also be considered a place of public accommodation as a “place of lodging,” and covered by title III of the ADA. In addition, if the shelter provides a significant enough level of social services, such as medical care, meals, counseling, transportation, or training, it may also be covered under title III as a “social service center establishment.”

Are nursing homes, congregate care facilities, independent living centers, and retirement communities covered as places of public accommodation? Some may be. Nursing homes are expressly covered in the title III regulation as social service center establishments. Similar residential facilities, such as congregate care facilities, independent living centers, and retirement communities, are covered by title III, if they provide a significant enough level of social services that they can be considered social service center establishments. Social services in this context include medical care, assistance with daily living activities, provision of meals, transportation, counseling, and organized recreational activities. No one of these services will automatically trigger ADA coverage. Rather, the determination of whether a private entity provides a significant enough level of social services will depend on the nature and degree of the services.

If a facility provides a significant enough level of social services such that it can be considered a social service center establishment, all of those portions of the facility that are used in the provision of the social services are covered by the ADA. For example, if the social services are provided throughout the facility, including in the individual housing units, then the entire facility is a place of public accommodation, covered by title III. (1994 Supplement)

Are group homes covered by title III? Sometimes. Like congregate care facilities and the other dual residential/social service facilities discussed above, group homes are covered by title III if they provide a significant enough level of social services to be considered social service center establishments. The homes are not subject to title III if they simply provide family-like living arrangements without significant social services. Foster care provided by a family in its own home is not covered.

Does title III apply to common areas within residential facilities? Although title III does not apply to strictly residential facilities, it covers places of public accommodation within residential facilities. Thus, areas within multifamily residential facilities that qualify as places of public accommodation are covered by the ADA if use of the areas is not limited exclusively to owners, residents, and their guests.

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.

ILLUSTRATION 3: A private residential apartment complex contains a rental office. The rental office is a place of public accommodation. 

ILLUSTRATION: LM, Inc., a private, nonsectarian, nonprofit organization operates a homeless shelter permitting stays ranging from overnight to those of sufficient length to result in coverage as a dwelling under the Fair Housing Act. The shelter also provides social services, such as counseling and medical care, to residents and others. As a "social service establishment," the homeless shelter is a place of public accommodation and would be subject to title III of the ADA. Because it permits short-term, overnight stays, it may also be considered a place of public accommodation as a "place of lodging."

Are model homes places of public accommodation? Generally, no. A model home does not fall under one of the 12 categories of places of public accommodation. If, however, the sales office for a residential housing development were located in a model home, the area used for the sales office would be considered a place of public accommodation. Although model homes are not covered, the Department encourages developers to voluntarily provide at least a minimal level of access to model homes for potential homebuyers with disabilities. For example, a developer could provide physical access (via ramp or lift) to the primary level of one of several model homes and make photographs of other levels within the home as well as of other models available to the customer.

Can a vacation timeshare property be a place of public accommodation? Yes. Whether a particular timeshare property is a place of public accommodation depends upon how much the timeshare operation resembles that of a hotel or other typical place of lodging. Among the factors to be considered in this determination are --

1) Whether the timeshare offers short-term ownership interests (for instance, stays of one week or less are considered short term);

2) The nature of the ownership interest conveyed (e.g., fee simple);

3) The degree of restrictions placed on the ownership (e.g., whether the timeshare owner has the right to occupy, alter, or exercise control over a particular unit over a period of time);

4) The extent to which the operations resemble those of a hotel, motel, or inn (e.g., reservations, central registration, meals, laundry service).

If a public accommodation operating two geographically separate facilities serves clients or customers at one location and has only administrative offices at another, are both sites places of public accommodation? No. Only the facility in which clients or customers are served is covered as a place of public accommodation. The geographically separate, employees-only facility is a commercial facility, but any activities undertaken in that facility that affect the operations of the place of public accommodation are subject to the title III requirements for public accommodations.

ILLUSTRATION: A medical care provider owns one building in which patients are seen, and another building in a different location that contains only administrative offices. At the building housing the administrative offices, no services are provided (no patients go there, only employees). The building where patients are treated is a place of public accommodation. The geographically separate administrative offices are a commercial facility, not a place of public accommodation. However, any policies or decisions made in the administrative offices that affect the treatment of patients would be subject to the requirements for public accommodations. For example, a protocol for the provision of auxiliary aids that is issued as a directive to medical staff by the administrative office must comply with the effective communication requirements for public accommodations.

BUT: If patients receive medical services in the same building where the administrative offices are located, the entire building is a place of public accommodation, even if one or more floors are reserved for the exclusive use of employees. (1993 Supplement)

Are privately owned ships covered by title III? Yes. Ships operated by a private entity that is primarily engaged in the business of providing transportation are subject to ADA requirements established by the U.S. Department of Transportation (see III-4.4700). (Ships registered under foreign flags that operate in United States ports may be subject to domestic laws, such as the ADA, unless there are specific treaty prohibitions that preclude enforcement.) If a ship, or portion of a ship, functions as one of the twelve categories of places of public accommodation, the ship is also subject to the title III requirements for places of public accommodation.

ILLUSTRATION: A cruise ship is owned and operated by a private entity whose primary business is to operate cruise ships. On the ship are places of lodging, restaurants, bars, a health club, and a nightclub. The private entity is a public accommodation and must comply with the applicable requirements of title III.

Places of public accommodation aboard ships must comply with all of the title III requirements, including removal of barriers to access where readily achievable. Currently, however, a ship is not required to comply with specific accessibility standards for new construction or alterations, because specific accessibility standards for new construction or alteration of cruise ships have not yet been developed.

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