EXISTING FACILITIES, NEW CONSTRUCTION and ALTERATIONS
The Americans with Disabilities Act (ADA) Title II regulation that applies to policies, including smoking policies, is 28 C.F.R. § 35.130(b)(7), which states:
“A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity.”
Since second hand tobacco smoke is a public health hazard, a public entity cannot show that it would be a fundamental alteration of a public service, policy or practice to make a modification to a smoking policy that exposes individuals with disabilities to second hand tobacco smoke.
So, why is it that public entities discriminate against individuals with disabilities that are caused by or exacerbated by second hand tobacco smoke?
The answer is simple. Federal agencies, including the Federal Aviation Administration, the U.S. Department of Transportation and the Office of Federal Contract Compliance Programs, interpret 28 C.F.R. § 35.150(a)(1) to be applicable to policies, practices and procedures in addition to architectural barriers and structural changes. Their interpretation is used to permit public entities to make part of their facilities inaccessible to the breathing disabled rather than change a smoking policy in order to allow the breathing disabled to have “meaningful access” to the facilities. Such is not the case. 28 C.F.R. § 35.150(a)(1) applies only to architectural barriers and structural changes.
28 C.F.R. § 35.150 applies to existing facilities. It regulates architectural barriers and structural changes in facilities that existed on or prior to January 26, 1992.
28 C.F.R. § 35.151 applies to new construction and alterations. It regulates architectural barriers in facilities that were constructed or altered after January 26, 1992.
28 C.F.R. § 35.150, Existing facilities, states, in pertinent part:
“(a) General. A public entity shall operate each service, program or activity so that the service, program or activity, when viewed in its entirety, is readily accessible and useable by individuals with disabilities. This paragraph does not—
(1) Necessarily require a public entity to make each of its existing facilities accessible to and useable by individuals;”
28 C.F.R. § 35.151, New construction and alterations, states, in pertinent part:
“(a) Design and construction. Each facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such a manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities, if the construction was commenced after January 26, 1992.
(b) Alteration. Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992.
Notice that 28 C.F.R. § 35.150(a)(1) does not “Necessarily require a public entity to make each of its existing facilities accessible to and useable by individuals”
Also, notice that 28 C.F.R. § 35.151(a) and (b) require that the facility or altered part of the facility must be readily accessible to and usable by individuals with disabilities if constructed or altered after January 26, 1992.
The Supreme Court interpreted 28 C.F.R. §§ 35.150 and 35.151 as applying only to structural changes and architectural barriers in Tennessee v. Lane, 524 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004).
"Congress required the States to take reasonable measures to remove architectural and other barriers to accessibility. 42 U.S.C. § 12131(2). … As Title II's implementing regulations make clear, the reasonable modification requirement can be satisfied in a number of ways. In the case of facilities built or altered after 1992, the regulations require compliance with specific architectural accessibility standards. 28 CFR § 35.151(2003). But in the case of older facilities, for which structural change is likely to be more difficult, a public entity may comply with Title II by adopting a variety of less costly measures, including relocating services to alternative, accessible sites and assigning aides to assist persons with disabilities in accessing services. § 35.150(b)(1). Only if these measures are ineffective in achieving accessibility is the public entity required to make reasonable structural changes." Id. at 531-532, 124 S.Ct. 1993-94.
In Kinney v. Yerusalum, 9 F.3d 1067(1993), the U.S. Court of Appeals for the Third Circuit interpreted 28 C.F.R §§ 35.150 and 35.151. The Court held that:
" … the Department of Justice issued regulations maintaining the previously established distinction between existing facilities, which are covered by 28 C.F.R. 35.150 (1992), and new construction and alterations, which are covered by 28 C.F.R. 35.151 (1992). With limited exceptions, the regulations do not require public entities to retrofit existing facilities immediately and completely. Rather, a flexible concept of accessibility is employed, and entities are generally excused from making fundamental alterations to existing programs and bearing undue financial burdens. 28 C.F.R. 35.150(a) and (b). In contrast, the regulations concerning new construction and alterations are substantially more stringent. When a public entity independently decides to alter a facility, it 'shall, to the maximum extent feasible, be altered in such a manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities.'" See Kinney v. Yerusalum, 9 F.3d at 1071.
Tennessee v. Lane and Kinney v. Yerusalum leave no doubt that 28 CFR § 35.150 is a regulation that applies only to architectural barriers and structural changes to facilities that were built on or before January 26, 1992.
Tennessee v. Lane and Kinney v. Yerusalum make it even more obvious that 28 C.F.R. § 35.150(a)(1) doesn’t even apply to facilities that were constructed or altered after January 26, 1992.
Moreover, under Department of Transportation Rules:
“49 C.F.R. 27.71, promulgated in 1979, has required all new terminals at airports receiving Federal financial assistance since that time to meet substantially the same accessibility requirements as set forth in the ACAA NPRM [Air Carrier Access Act Notice of Proposed Rulemaking]. Under the 1979 section 504 rule, federally-assisted airport facilities existing in 1979 were to have been modified for accessibility no later than 1982. … If there are federally-assisted airports that do not meet these requirements, they are in noncompliance with 49 CFR Part 27 and their operators need to take corrective action immediately.” See Final Rule, Nondiscrimination on the Basis of Handicap in Air Travel, Federal Register / Vol. 55, No. 44 / Tuesday, March 6, 1990 Rules and Regulations, 8008, 8024.
Therefore, the Federal Aviation Administration and the Department of Transportation are also applying 28 C.F.R. § 35.150(a) in violation of 49 C.F.R. § 27.71 .
The statutes and regulations cited above can be accessed at http://www.law.cornell.edu
DISCLAIMER: The content contained on this website has been prepared by GASP of Texas as a service to its readers and the Internet community and is not intended to constitute legal advice. GASP of Texas has used reasonable efforts in collecting, preparing and providing quality information and commentary, but does not warrant or guarantee the accuracy, completeness, adequacy or currency of the information contained on or linked to the Website. Users of information from the Website or links do so at their own risk.
Download this page as a Microsoft Word document
|