In Public Accommodations and Services Operated by Private Entities, Can Services Be Denied?

The answer is yes.  The answer is found in the Americans with Disabilities Act of 1990 (ADA), as amended in 2008 with an effective date of January 1, 2009.  Title 42 – The Public Health and Welfare – Chapter 126 – Equal Opportunity for Individuals with Disabilities:

Subchapter III – Public Accommodations and Services Operated by Private Entities.
12182 Prohibition of discrimination by public accommodations.
(b) Construction.
(3) Specific construction.
“Nothing in this subchapter shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others.  The term ‘direct threat’ means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services.”

This amendment writing is much more onerous than the original for a public accommodation.  The words, “…or by the provision of auxiliary aids or services,” are really all encompassing.  The question now really becomes:  must the public accommodation have these auxiliary aids or services in place?  In the opinion of ACCESS, the answer is no.  So, the proper answer is to deny the individual to participate, based on a “direct threat” to the health and safety of others, but to at the same time agree to provide auxiliary aids and / or services based upon the specific needs known, and providing adequate time for the public accommodation to acquire those needs.

Let us know what you think.  Leave your comments here or on our FaceBook page at http://www.facebook.com/pages/Access-Technologies-Services-Inc/268659564730. You can also contact us at hfalstad@accessts.net or call us at (702) 649-7575.


Hank



The above are opinions of Hank Falstad, AIA, Managing Senior Associate of Access Technologies Services, Inc. (ACCESS).  See our web site for additional information:  www.accessts.net.