Most people are generally familiar with the concept that hotels, restaurants, and other places of public accommodation are subject to the Americans with Disabilities Act (“ADA”). However, as we have mentioned before on this blog, community associations can fall under the scope of the ADA as well.
The ADA is a sweeping set of federal statutes that applies to places of public accommodation, amongst other entities. The ADA framework seeks to prohibit discrimination against disabled persons. As a general matter, a community association may be a place of public accommodation for purposes of the ADA if it is open to the general public, if its common areas are available for rent by members of the public, or if there are portions of the common area open to the public, such as restaurants or a golf course. The legal inquiry as to whether an association is a “covered entity” is rather fact intensive. Ultimately, the analysis turns on how open the Association is to members of the general public, not just its own owners. The more a community association is open to the public, the higher the chance that the community association will fall under the scope of the ADA.
To complicate matters, while the ADA is broad and sweeping, there is little clear guidance with respect to specific situations. Rather, each situation needs to be analyzed on a case by case basis.
Community associations need to be familiar with the ADA and its potential applicability. The ADA provides substantial remedies for plaintiffs in cases of alleged violations of its provisions. In some cases, the ADA permits recovery of compensatory damages, punitive damages, injunctive relief, and attorney’s fees.
As a general matter, the ADA, in part, prohibits discrimination against a person on the basis of disability with respect to the full and equal enjoyment of the privileges, good, services, etc. of any covered entity (e.g., place of public accommodation). Additionally, the ADA requires covered entities to provide reasonable accommodations to persons with disabilities under the ADA. “Disability” under the ADA is defined broadly and includes a person (i) having any condition that substantially limits one or more major life activities, (ii) that has a record of such an impairment, or (iii) that is regarded as having such an impairment. Qualifying conditions include things like blindness or deafness (more obvious examples) but can also include less obvious conditions as well.
A community association often faces ADA requests in the form of (i) an owner or guest requesting an accommodation through the waiver of a restrictive covenant, or (ii) an owner asking for a modification to association property (such as the installation of a chair lift for pool entry). Once the request is made, the Association will then face the tasks of analyzing the request, determining whether the request is reasonable or feasible, and what action should be taken. Questions of cost, financial resources of the association, and feasibility are key inquiries in determining whether a request is “reasonable.” Since each situation is different, each request ought to be analyzed with legal counsel.
It is important for associations to respond to the request within a reasonable period of time. However, it is also important not to rush to a decision without consulting with legal counsel. Moreover, it is also wise to limit any public comment on the issue (as such comments could form the basis for a harassment or hostile environment claim under the ADA).
All community associations should develop a working strategy on how to handle ADA accommodation requests. The ADA is a complicated area of law. Accordingly, it is important to engage competent legal counsel to analyze those requests.