Sport Facilities VII

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Accessible Golf: Title III of the ADA – The Latest Trend in Disability Litigation

By

Youndy C. Cook Ford & Harrison LLP June, 2001

The PGA is not the only business entity to find itself subject to the accessibility requirements of Title III of the Americans with Disabilities Act ("ADA"). The recent U.S. Supreme Court decision in PGA v. Martin focused public attention on the accessibility requirements of the ADA, which often apply to entities not subject to the ADA’s employment requirements. The Court held that the PGA must adjust its usual rules and allow a disabled professional golfer to ride a cart between holes in professional competition. The Court rejected the PGA’s arguments that walking 18 holes of golf is an essential part of the professional golf competition. The Court’s decision in Martin impacts all entities covered by Title III. In Martin, the Court adopted an expansive interpretation of Title III’s coverage provisions and demonstrated how difficult it is to prove the affirmative defense that an accommodation would fundamentally alter the nature of the services or goods offered by the covered entity. Even before the Martin decision, a number of businesses, including Carnival Cruise Lines, Kmart, and even Walt Disney World, discovered that the rising cost of doing business for many companies in- cludes the cost of Title III lawsuits. Carnival recently settled a suit filed by Access Now, a disability advocacy group, that requires the cruise line to modify up to 25 cabins on each of its ships to make them more accommodating. Access Now has similar lawsuits pending against other cruise lines. Edward Resnick, the leader of Access Now, also recently sued Walt Disney World, claiming that the resort’s rest-rooms and ramps do not comply with the ADA. Access Now has sued a variety of businesses, including hospital chains, department stores, restaurants, and a professional sports stadium. Other disability advocacy groups, such as the Colorado Cross- Disability Coalition, have filed class action accessibility suits against retail chains such as Kmart and Taco Bell. The move has been in favor of larger suits designed to cover more physical territory in one action. Title III of the ADA applies to places of public accommodation and commercial facilities. In Martin, the Court rejected the PGA’s argument that its tournaments are not places of public accommodation. The Court held that the tournaments are covered because they offer two privileges to the public - watching the tournaments and competing in them. This expansive interpretation of the coverage provisions under Title III may impact other entities that might previously have successfully argued that they are not covered by Title III. The ADA imposes highly technical requirements for accessible restrooms, disabled parking, exterior and interior doors, and practically every other building element of every place of public accommodation or commercial facility. The act’s requirements vary slightly depending on the age of the building. The primary concern in older buildings that have not undergone major renovations is barrier removal, while renovations and new construction must meet a higher standard of accessibility.

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One defense to the ADA’s accessibility requirements is that the modification would fundamentally alter the nature of the goods or services provided by the entity. In Martin, the Court rejected the PGA’s argument that permitting Casey Martin to use a golf cart would fundamentally alter the nature of the tournaments provided by the PGA. Significantly, the Court held that Title III requires an individualized inquiry to determine whether a specific modification is available that would accommodate a specific disability and yet at the same time not create a fundamental alteration. This requirement applies to all places of public accommodation, not just the PGA. The decision in Martin may lead to an increase in Title III litigation, which often surprises owners and operators because there is no notice requirement under Title III. While Title III does not provide for an award of damages, plaintiffs can recover attorney fees if they can establish technical violations of Title III. Once litigation commences, the plaintiffs will usually request that their experts (often architects or engineers) be permitted to perform a walk-through inspection of the business premises. Defendants should consider retaining their own experts to accompany the plaintiffs’ experts on the inspection, to ensure that the violations cited by the plaintiffs’ experts are actually violations, are in a public area, and that the proposed fix is the most appropriate or economical one available. Owners and operators should also consider developing and actively promoting a barrier removal or accessibility plan and should critically evaluate their facilities for accessibility concerns. Doing so could minimize or discourage future claims by different advocacy groups and bolster defense of the current suit. Changes in policy and customer service may also be required, with appropriate training for employees. If litigation occurs despite best efforts to eliminate compliance problems, handling that litigation in an efficient manner will be the single most effective way of reducing any claims for fees by the plaintiff(s).

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