Post by Admin on Jan 18, 2014 10:07:58 GMT -5
This is on the agenda for the upcoming 1/22/14 BOD meeting and I thought it would be appropriate to post a short discussion by a Florida attorney.
Does the Americans with Disabilities Act ("ADA") Apply to an Association's Common Areas or Common Elements?
February 27, 2013
Blog Sponsored by Taylor & Currls, P.A.
The ADA covers a variety of prohibited activities with regard to discrimination against “disabled” persons, ranging from discrimination in public accommodations to discrimination in employment settings.
Title III, of the ADA, the section most likely to apply to community associations, prohibits discrimination on the basis of a disability by a private entity in a place of public accommodation. Title III also requires alteration to places of public accommodation and new places of public accommodation to be readily accessible and usable by a person with disabilities.
“Public Accommodation” is defined in the ADA by listing twelve (12) types of entities that are considered places of public accommodation. Residential facilities are not listed as one of the twelve (12) types of entities. Therefore, Common Areas of a homeowners’ association and Common Elements of a condominium, such as the clubhouse and pool, are not covered by Title III of the ADA where use is restricted exclusively to residents and their guests and not open to the public.
The exemption from the requirements of the ADA would not apply if the Association were to open the Common Areas, such as the clubhouse or pool, to use by the general public who are not residents or guests of residents. For instance, if the Association were to rent the use of the clubhouse or pool to the general public or host events open to the general public, then the ADA would likely apply.
As long as the use of the Common Areas is limited to residents and their guests, however, the ADA does not apply.
This, however, does not mean an association does not have to make reasonable accommodations. Under the Florida and Federal Fair Housing Acts, the Association has to make reasonable accommodations. However, the difference is that if the Association has to comply with the ADA, the Association is responsible for the cost of the alterations; whereas, if the Association has to make a reasonable accommodation under the Florida and Federal Fair Housing Acts, the person requesting the alteration must pay for the same.
It is also important to note, if the clubhouse is considered a public accommodation and must comply with the ADA, all of the other Common Areas or Common Elements do not, necessarily, have to comply with the ADA. Only the facilities where the general public is permitted to use the facilities are considered places of public accommodation, which must comply with the ADA.
Some situations where the Association’s clubhouse may be subject to the requirements of the ADA are as follows
1. The Association permits a tennis instructor to teach at the clubhouse, and the tennis instructor lives outside of the community. If the classes are limited to Members, residents and guests of Members and residents, then the clubhouse does not need to comply with the requirements of the ADA. This is true even if the tennis instructor lives outside of the community because the services of the tennis instructor are only for the use and benefit of the community, not the public at large. However, if the classes are open to persons outside of the community, then the clubhouse would be subject to the requirements of the ADA.
2. If the Association permits parties, such as Tupperware parties, etc., and these parties are open to the public, then it is a place of public accommodation and the clubhouse would be subject to the requirements of the ADA.
3. If Members of the Association use the clubhouse to have a rummage sale that is open to the public, then it is a place of public accommodation and the clubhouse would be subject to the requirements of the ADA.
Does the Americans with Disabilities Act ("ADA") Apply to an Association's Common Areas or Common Elements?
February 27, 2013
Blog Sponsored by Taylor & Currls, P.A.
The ADA covers a variety of prohibited activities with regard to discrimination against “disabled” persons, ranging from discrimination in public accommodations to discrimination in employment settings.
Title III, of the ADA, the section most likely to apply to community associations, prohibits discrimination on the basis of a disability by a private entity in a place of public accommodation. Title III also requires alteration to places of public accommodation and new places of public accommodation to be readily accessible and usable by a person with disabilities.
“Public Accommodation” is defined in the ADA by listing twelve (12) types of entities that are considered places of public accommodation. Residential facilities are not listed as one of the twelve (12) types of entities. Therefore, Common Areas of a homeowners’ association and Common Elements of a condominium, such as the clubhouse and pool, are not covered by Title III of the ADA where use is restricted exclusively to residents and their guests and not open to the public.
The exemption from the requirements of the ADA would not apply if the Association were to open the Common Areas, such as the clubhouse or pool, to use by the general public who are not residents or guests of residents. For instance, if the Association were to rent the use of the clubhouse or pool to the general public or host events open to the general public, then the ADA would likely apply.
As long as the use of the Common Areas is limited to residents and their guests, however, the ADA does not apply.
This, however, does not mean an association does not have to make reasonable accommodations. Under the Florida and Federal Fair Housing Acts, the Association has to make reasonable accommodations. However, the difference is that if the Association has to comply with the ADA, the Association is responsible for the cost of the alterations; whereas, if the Association has to make a reasonable accommodation under the Florida and Federal Fair Housing Acts, the person requesting the alteration must pay for the same.
It is also important to note, if the clubhouse is considered a public accommodation and must comply with the ADA, all of the other Common Areas or Common Elements do not, necessarily, have to comply with the ADA. Only the facilities where the general public is permitted to use the facilities are considered places of public accommodation, which must comply with the ADA.
Some situations where the Association’s clubhouse may be subject to the requirements of the ADA are as follows
1. The Association permits a tennis instructor to teach at the clubhouse, and the tennis instructor lives outside of the community. If the classes are limited to Members, residents and guests of Members and residents, then the clubhouse does not need to comply with the requirements of the ADA. This is true even if the tennis instructor lives outside of the community because the services of the tennis instructor are only for the use and benefit of the community, not the public at large. However, if the classes are open to persons outside of the community, then the clubhouse would be subject to the requirements of the ADA.
2. If the Association permits parties, such as Tupperware parties, etc., and these parties are open to the public, then it is a place of public accommodation and the clubhouse would be subject to the requirements of the ADA.
3. If Members of the Association use the clubhouse to have a rummage sale that is open to the public, then it is a place of public accommodation and the clubhouse would be subject to the requirements of the ADA.
