Tuesday, May 24, 2011

Setting the Record Straight on ADA

Yesterday's News Flash (IAAPA member login required) featured an article about a county-operated miniature golf course in North Carolina that will be forced to close if it cannot comply with the new ADA regulations when they become effective next spring. There has been some confusion about this issue, and I wanted to set the facts straight:

The article is inaccurate when it states that up until now, miniature golf courses have been "grandfathered" into compliance. IAAPA members know recreation facilities were not included in the 1991 Standard (however certain elements present in a recreation facility, such as parking lots and bathrooms, were included). Until the 2004 ADA Accessibility Guidelines were published, there were no federal standards for miniature golf courses, swimming pools, or amusement rides. The 2004 Guidelines were not law until adopted by the U.S. Department of Justice last summer, and are not effective until March 15, 2012. Having said that, since the 2004 Guidelines were released IAAPA has encouraged its members to incorporate them into new construction or alteration, as we knew they would eventually be adopted as law.

For elements that were included in the 1991 Standard (such as bathrooms, service counters, and parking lots), there is a "safe harbor" in the new regulations, provided those elements are compliant with the 1991 Standard. This means a business does not have to change these elements to comply with the 2010 Standard.

Title II vs. Title III
The miniature golf course at the Dan Nicholas Park is operated by Rowan County; it is not a private business. Government facilities such as the Dan Nicholas Park are subject to Title II of the Americans with Disabilities Act. Commercial businesses (which make up the vast majority of IAAPA members) are subject to Title III of of the ADA. Both titles were updated in the rulemaking that came to an end last fall, but the rules are slightly different.

Both Title II and Title III reference the 2010 Standards for Accessible Design. Both sets of rules have the same effective date for compliance with the 2010 Standards for new construction and alteration, and barrier removal: March 15, 2012.

The major difference lies in the barrier removal obligations. Under Title II, state and local governments do not have the "flexibility" that is provided under Title III for "readily achievable" barrier removal. Under Title II, state and local governments must provide access to programs, and each program is evaluated on the whole. If Rowan County has only one miniature golf course that is not accessible—and cannot be made accessible—and the county cannot afford to build a new, accessible course, then its options are to close the course or wait for legal activity.

A commercial business is required to do barrier removal to the extent "readily achievable," which means "easily accomplishable without much difficulty ot expense." IAAPA encourages miniature golf course operators to survey the accessibility of their courses and develop a response plan to remove barriers on the course. The response plan might not make a course fully accessible by March 15, 2012, but ideally it would show step-by-step how an operator plans to make his or her facility accessible as resources allow.

More Information
Watch your mailboxes for the July issue of Funworld, IAAPA's monthly magazine, which contains an article explaining the new ADA rules for recreational facilities. To provide members with more in-depth information on the 2010 Standards, IAAPA is publishing a series of white papers, which will be available soon. If you have more questions, please don't hesistate to contact us.

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