- Does the Americans with Disabilities Act (ADA) require local governments to accommodate, by varying from city's zoning code, an improvement (ramp) necessary for a disabled person?
Here's what the Department of Justice has to say about this issue:
Issue: Local Laws, Ordinances, and Regulations
Common Problem:
City governments may fail to consider reasonable modifications in local laws, ordinances, and regulations that would avoid discrimination against individuals with disabilities.
Result:
Laws, ordinances, and regulations that appear to be neutral often adversely impact individuals with disabilities. For example, where a municipal zoning ordinance requires a set-back of 12 feet from the curb in the central business district, installing a ramp to ensure access for people who use wheelchairs may be impermissible without a variance from the city. People with disabilities are therefore unable to gain access to businesses in the city.
Requirement:
City governments are required to make reasonable modifications to policies, practices, or procedures to prevent discrimination on the basis of disability. Reasonable modifications can include modifications to local laws, ordinances, and regulations that adversely impact people with disabilities. For example, it may be a reasonable modification to grant a variance for zoning requirements and setbacks. In addition, city governments may consider granting exceptions to the enforcement of certain laws as a form of reasonable modification. For example, a municipal ordinance banning animals from city health clinics may need to be modified to allow a blind individual who uses a service animal to bring the animal to a mental health counseling session. 28 C.F.R. § 35.130(b)(7).
"The ADA and City Governments: Common Problems," U.S. Department of Justice, Civil Rights Division, Disability Rights Section
- Does the ADA require that cities and counties place a notice about ADA accommodation availability in the published notice of upcoming council or board meetings?
Not specifically, but doing this would be consistent with the intent of
the following requirement in a regulation (28 C.F.R. �35.163(a)) adopted
by the Department of Justice to implement the ADA: A public entity shall
ensure that interested persons, including persons with impaired vision or
hearing, can obtain information as to the existence and location of accessible
services, activities, and facilities. Language such as the following would
be appropriate for inclusion in the published notice and on the printed
agendas: AMERICANS WITH DISABILITIES ACT (ADA) ACCOMMODATIONS PROVIDED UPON
REQUEST.
- If the court rooms located on the second floor of the county courthouse are not accessible for persons with disabilities, is it acceptable for the county to require county employees to carry disabled persons to the court room?
Although the county must make sure that its services, programs, or activities
are readily accessible to and usable by individuals with disabilities, they
are not necessarily required to make each of their existing facilities accessible.
However, in this case where the courtrooms are on the second floor and there
is no elevator or other means of accessibility to the second floor, the
county must relocate the proceedings to an accessible ground floor courtroom
or take alternative steps, including moving the proceedings to another building
in order to allow persons with a disability to participate in court proceedings.
(See ADA Title II Technical
Assistance Manual, U.S. Department of Justice, II-5.0000 Program Accessibility;
28 CFR 35.149-35.150.)
There are limitations on accessibility requirements if the public entity
can demonstrate that this action would result in a "fundamental alteration
in the nature of its program or activity or in undue financial and administrative
burdens." However, this determination should be made by the county commissioners
and "must be accompanied by a written statement of the reasons for reaching
that conclusion." (ADA Title II Technical Assistance Manual, II-5.0000.)
The agency must still find some other method of ensuring that individuals
with disabilities receive the benefits and services of the program or activity.
On the question of whether accessibility can be achieved by carrying disabled
individuals up stairs, the Manual answer is as follows:
ILLUSTRATION 1: The office building housing a public welfare agency may
only be entered by climbing a flight of stairs. If an individual with a
mobility impairment seeks information about welfare benefits, the agency
can provide the information in an accessible ground floor location or in
another accessible building.
Is carrying an individual with a disability considered an acceptable method
of achieving program access? Generally, it is not. Carrying persons with
mobility impairments to provide program accessibility is permitted in only
two cases. First, when program accessibility in existing facilities can
be achieved only through structural alterations (that is, physical changes
to the facilities), carrying may serve as a temporary expedient until construction
is completed. Second, carrying is permitted in manifestly exceptional cases
if (a) carriers are formally instructed on the safest and least humiliating
means of carrying and (b) the service is provided in a reliable manner.
Carrying is contrary to the goal of providing accessible programs, which
is to foster independence.
(ADA Title II Technical Assistance Manual, II-5.0000)
We recommend that the county continue to use its current policy of relocating
court proceedings to the Commissioners hearing room on the first floor of
the courthouse when a disabled person is a participant in a court proceeding.
For providing access for the general public to observe court proceedings,
they could provide a "carrying service" available on "reasonable notice"
which follows the guidelines set out in the illustration. In any case, the
county commissioners should establish a formal policy with clear guidelines
so that everyone is clear about how court proceedings will be made accessible.
- Does the ADA require that cities place a notice about ADA accommodation availability in published notice of upcoming council meetings?
Not specifically, but doing this would be consistent with the following
requirement in 28 C.F.R. �35.163(a):
A public entity shall ensure that interested persons, including persons
with impaired vision or hearing, can obtain information as to the existence
and location of accessible services, activities, and facilities.
Language such as the following would be appropriate for inclusion in the
published notice and at the bottom of printed agendas: AMERICANS WITH DISABILITIES
ACT (ADA) REASONABLE ACCOMMODATIONS PROVIDED UPON REQUEST.