Model Homes: A Source of ADA Liability For Homebuilders?
By Robert S. Fine, Greenberg
Traurig, Miami Office
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Are model homes and units subject to the requirements of the ADA and
state accessibility codes?
This is a question we are seeing come to us more and more frequently
from providers of single-family homes, townhouses and multifamily dwellings.
|"A model home does not fall under
one of the 12 categories of places of public accommodation."
The answer to this question depends on whether the model home, in and
of itself, is a place of public accommodation. Being a place of public
accommodation is what subjects a business to coverage under the Americans
with Disabilities Act (“ADA”) and many state accessibility codes. By definition,
a place of public accommodation is a facility, operated by a private entity,
whose operations affect commerce and may be: an inn, hotel, motel, or other
place of lodging; restaurant, bar, or other establishment serving food or
drink; a bakery, grocery store, clothing store, hardware store, shopping
center, or other sales or rental establishment; motion picture house,
theater, concert hall, stadium, or other place of exhibition or entertainment;
laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service,
shoe repair service, funeral parlor, gas station, office of an accountant
or lawyer, pharmacy, insurance office, professional office of a health care
provider, hospital, or other service establishment; among other things (
28 C.F.R. 36.104). The manner in which the model home is used is what may
turn it into a place of public accommodation and then be subjected to the
accessibility standards of the ADA as well as state and local accessibility1
The distinction as to whether a model home is a place of public accommodation
or not is significant due to the stringent accessibility requirements imposed
on places of public accommodation by the ADA (and state and local accessibility
codes). For example, in a place of public accommodation, each restroom
must be accessible. The size, configuration and features in an accessible
toilet room meeting the ADA and most accessibility code standards, would
not be conducive to that which is normally found in single-family homes,
townhouses or condominium/apartment units. Also, in places of public accommodations,
all doors for user passage must provide a 32-inch wide, clear opening
and all level changes in excess of one-half inch must be ramped.
Is a model home a place of public accommodation?
According to the Department of Justice Americans with Disabilities Act
Title III Technical Assistance Manual2:
Generally no. A model home does not fall under one of the 12 categories
of places of public accommodation. If, however, the sales office for a
residential housing development is located in a model home, the area used
for the sales office would be considered a place of public accommodation.
In addition to the above, it should be noted that if a particular model
home is a place of public accommodation, the amenities that would serve
prospective buyers as well as employees and sales staff within that home
would also be considered as part of the place of public accommodation. This
might require the modification of operable bathrooms in the model home being
used as a sales office to be modified to be accessible (as set forth in
the ADA Accessibility Guidelines and applicable state accessibility codes),
widening of doors, and the ramping of all level changes. Also, the parking,
and the path of travel from the parking area through the entrance of the
house and to the sales area (which might be the entire house and yard),
would also be required to be accessible.
One way to minimize the perception that a model home is being used as
a place of public accommodation, and subjecting the provider of the housing
to be subject to liability under the ADA or analogous state laws and codes,
is to provide a separate accessible sales office near or adjacent to the
model homes or units. However, the activities in the model home might still
cause it to fall into being considered a public accommodation (for example,
the storing, and distribution of sales information and brochures within
the model home). The better option is to sufficiently segregate the sales
office area of the model house from the remainder of the house. Again, what
activities take place in the non-sales area of the house may dictate whether
it is sufficiently isolated from the sales establishment function. As such,
you should seek counsel with experience in federal and state disability
and accessibility laws and codes when planning the setup of model homes
(or units within a multifamily project) to be sure you do not violate federal
or state antidiscrimination laws and be subject to any corresponding liabilities.
1 For the purposes of this Alert, only the state
laws of Florida and Texas have been considered. However, the analysis set
forth in this Alert is relevant in numerous states and local jurisdictions.
Before applying the information set forth in this Alert, the reader should
consult counsel familiar with the accessibility laws in the relevant jurisdiction
to determine the appropriate standards with which to comply.
2 And as confirmed in Sapp v. MHI Partnership,
Ltd, 199 F.Supp.2d 578 (N.D.Tex. 2002).
© 2003 Greenberg Traurig
For more information, please review our Americans with Disabilities Act
Practice description, or feel free to contact one of our attorneys.
This GT ALERT is issued for general purposes only and is not intended
to be construed or used as legal advice. Greenberg Traurig attorneys provide
practical, result-oriented strategies and solutions tailored to meet our
clients’ individual legal needs. The Firm’s responsive approach to client
service often cuts across legal subject matter, applying the right experience
and resources to provide cost-effective solutions.