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GT Alert

Model Homes: A Source of ADA Liability For Homebuilders?

November 2003
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.

Robert Fine
"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 codes.

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.


Footnotes

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


Additional Information:

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.