BE's ADA Title III Outline

ADA TITLE III OUTLINE (begins on next page)

I.Overview of the ADA—The ADA forbids discrimination against people with disabilities in major areas of public life, including employment (Title I), public services (Title II), and public accommodations (Title III). PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001).

II.Overview of ADA Title III—Title III of the ADA prohibits discrimination against people with disabilities in the full and equal enjoyment of public accommodations, 42 U.S.C. § 12182(a), and public transportation services, § 12184(a).Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128 (2005).[1]

III.Source of Title III Law

A.Statute: 42 U.S.C. §§ 12181–12189.

B.Regulations: 28 C.F.R. Part 36. Title III regulations “are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052, 1060 (5th Cir. 1997).

C.DOJ Guidance: includes 28 C.F.R. Part 36 App.B (issued with the Title III regulations), and the Technical Assistance Manual and Supplement.[2] Such guidance is entitled to deference because the Department of Justice was delegated the duty “to render technical assistance explaining the responsibilities of covered individuals and institutions.” Sapp v. MHI Partnership, Ltd., 199 F. Supp. 2d 578, 586 (N.D. Tex. 2002) (relying on Title III Technical Assistance Manual), quoting Bragdon v. Abbott, 524 U.S. 624, 646 (1998); No Barriers, Inc. v. BRH Texas GP, L.L.C., 2001 WL 896924, at *3 (N.D. Tex. Aug. 2, 2001) (similar).

IV.Rules of Interpretation

A.The ADA is to be broadly interpreted to accomplish its remedial purposes.Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 132 (2005); id. at 145 (J. Ginsburg, concurring in part); PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001) (“In the ADA, Congress provided that broad mandate. In fact, one of the Act’s ‘most impressive strengths’ has been identified as its ‘comprehensive character,’ and accordingly the Act has been described as ‘a milestone on the path to a more decent, tolerant, progressive society.’”) (citations omitted).

B.ADA may not be interpreted to apply a lesser standard than that in §504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794). 42 U.S.C. §12201; 28 C.F.R. §36.103(c). The standards under §504 apply unless otherwise specified. 28 C.F.R. Part 36 App. B, §36.103.

V.Disability

A.Definitions: 42 U.S.C. §12102, as amended.

B.Note that the assessment of disability has been substantially modified by the ADA Amendments Act of 2008,Pub.L. 110-325, 122 Stat. 3555 (Sept. 25, 2008), eff. 1/1/09. See, e.g., “Employment Discrimination Cases After the ADA Amendments Act,” MCLE 901195740 (SBOT Webcast Mar. 2010).

VI.Businesses covered

A.Public Accommodations

1.Public accommodations are defined through a list of twelve types of entities, which include:most places of temporary lodging, establishments serving food or drink, places of exhibition or entertainment, places of public gathering, sales or rental establishment, service establishment, certain public transportation stations, places of public display or collection, places of recreation, places of education, social service center establishments, and places of exercise or recreation. 42 U.S.C. §12181(7); 28 C.F.R. §36.104.

2.The statutory list gives lots of specific examples of the above entities. These examples are not exclusive, although the categories listed above are. 28 C.F.R. Part 36 App. B, § 36.104.

3.Coverage is intended to be broad. PGA Tour, Inc. v. Martin, 532 U.S. 661, 676–677 (2001); Betancourt v. Federated Dept. Stores, 732 F. Supp. 2d 693, 701 (W.D. Tex. 2010). See also Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 129 (2005) (“Although the statutory definitions of ‘public accommodation’ … do not expressly mention cruise ships, there can be no serious doubt that the NCL cruise ships in question fall within both definitions under conventional principles of interpretation.”).

4.Must “affect commerce.” Commerce is broadly defined at 42 U.S.C. §12181(1). For example, a facility open to out-of-state visitors “affects commerce.” Technical Assistance Manual § III-1.2000(A) (1994 Supp.).

5.Includes entities that own, lease, lease to, or operate a public accommodation. 28 C.F.R. §36.104.

6.Both the landlord and the tenant that operates a place of public accommodation are subject to Title III. 28 C.F.R. § 36.201(b); 28 C.F.R. Part 36 App. B, § 36.201; Technical Assistance Manual § III-1.2000. And the lessee may be covered even if lessor is exempt, it has paid consideration (i.e., not using donated space). 28 C.F.R. Part 36 App. B, § 36.104.

7.Franchisor liability—a franchisor can be held liable under Title III if it “operates” a place of public accommodation. In the context of architectural barriers, courts have held that the relevant inquiry is whether the franchisor “specifically controls the modification of the franchises to improve their accessibility to the disabled.” Cortez v. National Basketball Ass'n, 960 F. Supp. 113 (W.D. Tex. 1997), citing Neff v. American Dairy Queen Corp., 58 F.3d 1063 (5th Cir. 1995); Alonzo v. Mr. Gatti’s Pizza, Inc., 933 S.W.2d 294 (Tex. App.–Corpus Christi 1996, no writ).

8.The courts are divided on whether architects or engineers who fail to design in compliance with the ADA are liable to the person with a disability. See Whitaker v. West Village Ltd. Partnership, 2004 WL 1778963, at *2–3 (N.D. Tex. Aug. 4, 2004) (siding with courts finding no such liability).

B.Commercial Facilities

1.All commercial facilities are covered, but only as to the requirements for new construction and alterations. 42 U.S.C. §12183(a); 28 C.F.R. §36.102(c); Technical Assistance Manual§ III-1.1000.

2.Commercial facilities are defined as those facilities intended for nonresidential use whose operations affect commerce (but excluding certain rail facilities). 42 U.S.C. §12181(2); 28 C.F.R. § 36.104.

C.Examinations or Course—entities offering such exams or courses are subject to Title III. 28 C.F.R. §§ 36.102(d) and 36.309.

D.Any person or entity may be sued for retaliation or coercion. 28 C.F.R. §36.206; 28 C.F.R. Part 36 App. B, §§ 36.102 and 36.206; Technical Assistance Manual § III-3.6000.

E.Title III does not apply to:

1.Private clubs, 42 U.S.C. §12187; 28 C.F.R. §36.102(e), which are defined at 28 C.F.R. §36.104 and 28 C.F.R. Part 36 App. B, § 36.104.

2.Religious organizations or entities controlled by religious organizations, including places of worship. 42 U.S.C. §12187, 28 C.F.R. §36.102(e); 28 C.F.R. Part 36 App. B, § 36.104 (exemption is broad);Technical Assistance Manual § III-1.5000.

3.Governmental entities. 42 U.S.C. §12187; 28 C.F.R. §§36.102(e) and 36.104; Bloom v. Bexar County, Tex., 130 F.3d 722, 726–727 (5th Cir. 1997). But lessees of government buildings may be covered. Technical Assistance Manual § III-1.2000(B) (1994 Supp.).

Notre, however, that the guidance issued with the latest amendments to the Title II regulations clarify that the Title III provisions regarding examinations and courses also apply to public entities that offer them. See 75 Fed. Reg. 56164, 56236 (Sept. 15, 2010). Compare Simmang v. Texas Bd. of Law Examiners, 346 F. Supp. 2d 874, 884 n.8 (W.D. Tex. 2004).

4.Those exempted by Title II of 1964 Civil Rights Act (42 U.S.C. §2000a(e)). 42 U.S.C. §12187.

5.Residences. Although homes, condos, and apartmentsare generally not covered, 28 C.F.R. Part 36 App. B, §§ 36.104 and 36.207,[3] the law does apply to:

a)Places of public accommodations within residential facilities. 28 C.F.R. Part 36 App. B, § 36.104; Technical Assistance Manual § III-1.2000.See also 28 C.F.R. § 36.401(b) (regarding new construction). Thus, for example, leasing offices in apartment houses are covered. Technical Assistance Manual § III-1.2000; No Barriers, Inc. v. BRH Texas GP, L.L.C., 2001 WL 896924 (N.D. Tex. Aug. 2, 2001). Similarly, sales offices located in model homes are covered. 28 C.F.R. Part 36 App. B, § 36.104; Sapp v. MHI Partnership, Ltd., 199 F. Supp. 2d 578, 584–587 (N.D. Tex. 2002). This could also include the common areas of a residential complex if use of the areas is not limited exclusively to owners, residents, and their guests. Technical Assistance Manual § III-1.2000.

b)Places of public accommodation located in a private residences. 28 C.F.R. §36.207; 28 C.F.R. Part 36 App. B, §§ 36.104 and 36.207.

c)Certain group homes. 42 U.S.C. §12181(7)(A); Technical Assistance Manual § III-1.2000(C) (1994 Supp.).

Places of lodging have always been covered, 42 U.S.C. § 12181(7)(A), but the latest amendments to the Title III regulations clarify that effective 3/15/2012, college dorms, shelters, and some timeshares and condominiums that operate like hotels are subject to many Title III obligations. See 28 C.F.R. §§ 36.104, 36.302(e), and 36.406(c), as amended, 75 Fed. Reg. 56236, 56250, 56251–56252, 56256–56257, 56263, 56306–56308 (Sept. 15, 2010).

F.Individual liability—Individuals may be liable if they are the owner, lessor/lessee, or operator of a public accommodation. 42 U.S.C. §12182(a); 28 C.F.R. Part 36 App. B, § 36.104.

VII.Discrimination

A.General rule.

1.“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. §12182(a); 28 C.F.R. §36.201(a); Griffin v. Public Access Community Television, 2010 WL 3815797, at *1 (W.D. Tex. Sept. 27, 2010).

2.The elements of a claim under this provision are: (1) the plaintiff has a disability; (2) the place that the defendant owns, leases, or operates is a place of public accommodation; and (3) plaintiff was denied full and equal enjoyment because of his/her disability. Griffin v. Public Access Community Television, 2010 WL 3815797, at *1 (W.D. Tex. Sept. 27, 2010); MacClymonds v. IMI Investments, Inc., 2007 WL 1306803, at *3 (S.D. Tex. Apr. 5, 2007).

B.General prohibitions

1.Denial of participation—cannot deny opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations.42 U.S.C. § 12182(b)(1)(A)(i); 28 C.F.R. § 36.202(a).

2.Unequal benefit—cannot offer participation in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded others.42 U.S.C. § 12182(b)(1)(A)(ii); 28 C.F.R. § 36.202(b).

3.Separate benefit—cannot provide good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to others, unless necessary to provide something as effective as that provided others.42 U.S.C. § 12182(b)(1)(A)(iii); 28 C.F.R. § 36.202(c).

4.Note that the above three prohibitions cannot be cannot be avoided by means of contract, but on the other hand, contractual relationships will not expand a public accommodation’s obligations beyond its own clients or customers. 42 U.S.C. § 12182(b)(1)(A)(iv); 28 C.F.R. § 36.202(d); PGA Tour, Inc. v. Martin, 532 U.S. 661, 679 (2001).

C.General obligations

1.Integrated settings—goods, services, facilities, privileges, advantages, and accommodations shall be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual. 42 U.S.C. §12182(b)(1)(B); 28 C.F.R. §36.203(a).

2.Opportunity to participate—notwithstanding the existence of separate or different programs or activities provided in accordance with this section, an individual with a disability shall not be denied the opportunity to participate in such programs or activities that are not separate or different.42 U.S.C. §12182(b)(1)(C); 28 C.F.R. §36.203(b).

3.Administrative methods—an individual or entity shall not, directly or through contractual or other arrangements, utilize standards or criteria or methods of administration that (a) have the effect of discriminating on the basis of disability; or (b) perpetuate the discrimination of others who are subject to common administrative control.42 U.S.C. §12182(b)(1)(D); 28 C.F.R. §36.204.

4.Association—it shall be discriminatory to exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.42 U.S.C. §12182(b)(1)(E); 28 C.F.R. §36.205.

D.Specific Prohibitions—The above general prohibitions are supplemented by various, more specific requirements. Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128 (2005). See also Betancourt v. Federated Dept. Stores, 732 F. Supp. 2d 693, 700–701 (W.D. Tex. 2010). These specific provisions (listed below) control over general provisions where both apply, 28 C.F.R. § 36.213, as do the specific defenses described in them. 28 C.F.R. Part 36 App. B, § 36.202.

1.Eligibility Criteria.

a)Title III prohibits eligibility criteria that screen out, or tend to screen out, people with disabilities from full and equal enjoyment. 42 U.S.C. §12182(b)(2)(A)(i); 28 C.F.R. 36.301(a).

b)Examples—this section prohibits

(1)Unnecessary inquiries regarding disabilities. 28 C.F.R. Part 36 App. B, § 36.301; Technical Assistance Manual § III-4.1300.

(2)Surcharges. 28 C.F.R. 36.301(c); 28 C.F.R. Part 36 App. B, § 36.301; Technical Assistance Manual § III-4.1300–4.1400.

(3)Reliance on “customer preference.” 28 C.F.R. Part 36 App. B, § 36.301; Technical Assistance Manual § III-4.1100.

c)Exceptions—such criteria are permitted if they are necessary for the provision of the goods, services, facilities, privileges, advantages, accommodations being offered, 42 U.S.C. §12182(b)(2)(A)(i);28 C.F.R. § 36.301(a), or are legitimate safety requirements necessary for safe operation, based on actual (not speculative) risk. 28 C.F.R. § 36.301(b).

2.Failure to Make Reasonable Modifications.

a)Title III prohibits the failure to make reasonable modifications in policies, practices and procedures necessary for persons with disabilities. 42 U.S.C. §12182(b)(2)(A)(ii); 28 C.F.R. §36.302.

b)There are specific provisions relating to service animals, 28 C.F.R. 36.302(c); Pena v. Bexar County, Texas, 726 F. Supp. 2d 675, 684 (W.D. Tex. 2010).

The latest amendments to the Title III regulations, effective 3/15/2011, clarify various things about the definition and use of service animals, including limiting the statutory protection to dogs and (with some restrictions) miniature horses. The definition includes psychiatric service animals, but excludes comfort animals. See 28 C.F.R. §§ 36.104 and 36.302(c), as amended, 75 Fed. Reg. 56236, 56250, 56251, 56265–56269 (Sept. 15, 2010).

c)There are specific provisions relating to checkout aisles. 28 C.F.R. 36.302(d).

The latest amendments to the Title III regulations clarify the rules on the sale of tickets for accessible seating, effective 3/15/2011. See 28 C.F.R. § 36.302(f), as amended, 75 Fed. Reg. 56236, 56252–56253, 56275–56280 (Sept. 15, 2010).

The latest amendments also clarify the procedures for reserving accessible rooms in places of lodging; limits the obligations of third-party reservation operators that do not themselves own and operate places of lodging; and gives places of lodging until 3/15/2012 to comply with these requirements. See 28 C.F.R. § 36.302(e), as amended, 75 Fed. Reg. 56236, 56251–56252, 56273–56275 (Sept. 15, 2010).

d)Defenses—policies need not be modified if doing so would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. §12182(b)(2)(A)(ii); 28 C.F.R. §36.302(a). See PGA Tour, Inc. v. Martin, 532 U.S. 661, 682 et seq. (2001) (finding use of golf cart did not fundamentally alter professional golf); Emery v. Caravan of Dreams, Inc., 879 F. Supp. 640, 644 (N.D. Tex. 1995) (no-smoking policy would fundamentally alter nightclub’s services); Lewis v. Dallas Soundstage, Inc., 167 S.W.3d 906, 914–915 (Tex. App.–Dallas 2005, no pet.) (moving studio tour to first floor would be fundamental alteration). Note, too, that the policy-modification provision does not prevent a medical provider from refusing to provide services outside provider’s area of specialization, if the defendant would normally refer such a person to another. 28 C.F.R. §36.302(b).

e)Burdens of proof—per Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052, 1059–1060(5th Cir. 1997), the plaintiff must first show that a modification was requested and that the requested modification is reasonable in the general sense, i.e., in the run of cases. If the plaintiff meets this burden, the defendant must make the requested modification unless the defendant pleads and proves that the requested modification would fundamentally alter the nature of the public accommodation, focusing on the specifics of the parties’ circumstances (rather than on the general nature of the accommodation). Note that modifying a “no animals” policy to allow full access for a service animal is generally reasonable. Pena v. Bexar County, Texas, 726 F. Supp. 2d 675, 684 (W.D. Tex. 2010), citing Johnson v. Gambrinus Co./Spoetzl Brewery.

f)Note that Title III does not require a business to alter or modify the actual products that it offers for sale. See, e.g., McNeil v. Time Insurance Co., 205 F.3d 179, 188 (5th Cir. 2000); Sapp v. MHI Partnership, Ltd., 199 F. Supp. 2d 578, 585 (N.D.Tex.2002); Dehoyos v. Allstate Corp., 2002 WL 1491650, at *4 (W.D. Tex. Apr. 5, 2002).

3.Auxiliary aids and services

a)Title III requires provision of auxiliary aids and services if necessary to ensure that a person with a disability isnot excluded, denied services, segregated, or treated differently. 42 U.S.C. §12182(b)(2)(A)(iii); 28 C.F.R. §36.303(a).

b)This provision also requires that public accommodations furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. 28 C.F.R. 36.303(c); 28 C.F.R. Part 36 App. B, § 36.303; Technical Assistance Manual § III-4.3200.

c)Auxiliary aids and services include, but are not limited to qualified interpreters, notetakers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening devices or systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, TDDs, videotext displays, qualified readers, taped texts, audio recordings, Brailled materials, large print materials, acquisition or modification of equipment or devices, other similar services and actions. 42 U.S.C. § 12103(1); 28 C.F.R. §36.303(b), (d), and (e); Betancourt v. Federated Dept. Stores, 732 F. Supp. 2d 693, 711 (W.D. Tex. 2010. See also 28 CF.R. Part 36 App. B, § 36.303.

Effective 3/15/2011 the latest amendments to the Title III regulations clarify certain provisions regarding phone service, readers, and interpreters; list additional auxiliary aids and services, including video remote interpreting (VRI) and screen-reader software; and establish performance and training standards for VRI. See 28 C.F.R. §§ 36.104 and 36.303(b), (c), (d), and (f), as amended, 75 Fed. Reg. 56236, 56250–56251, 56253–56254, 56280–56287 (Sept. 15, 2010).

d)The plaintiff should be consulted as to the choice of aid or service, although that choice is not binding. 28 C.F.R. Part 36 App. B, §36.303;Technical Assistance Manual § III-4.3200.

e)Defenses—these aids and services are not required if they would result in a fundamental alterationor an undue burden. 42 U.S.C. §12182(b)(2)(A)(iii); 28 C.F.R. §36.303(a). Fundamental alteration is not specifically defined, but undue burden means significant difficulty or expense. 28 C.F.R. §§36.104 and 36.303(a); 28 C.F.R. Part 36 App. B, §§ 36.104 and 36.303. See alsoTodd v. American Multi-Cinema, Inc., 2004 WL 1764686, at *3–4 (S.D. Tex. Aug. 5, 2004) (equipmentcosting tens of millions of dollars,exceedingdefendants’ capital, was undue burden). Factors used in assessing undue burden are listed in 28 C.F.R. § 36.104. As to financial considerations, accessibility tax advantages should be considered.[4] Even if a defense is established, the defendant must still provide alternatives that ensure accessibility and equality to the maximum possible extent. 28 C.F.R. § 36.303(f); 28 C.F.R. Part 36 App. B, § 36.303; Technical Assistance Manual § III-4.3600.

4.Architectural barriers—Title III requires the removal of architectural barriers (and communication barriers that are structural in nature). 42 U.S.C. §§12182(b)(2)(A)(iv) and 12183; 28 C.F.R. §§36.304 and 36.401–.406. The degree of accountability for architectural barriers varies based on whether the place of public accommodation was newly constructed and first occupied after January 25, 1993, underwent renovations or alterations that affect usability after that date, or existed prior to that date.28 C.F.R. Part 36 App. B, § 36.304; MacClymonds v. IMI Investments, Inc., 2007 WL 1306803, at *3 (S.D. Tex. Apr. 5, 2007). Note, however, that the ADA “does not simply require that some of Defendants’ … offices be accessible …; it requires that all of them be so accessible.” Sapp v. MHI Partnership, Ltd., 199 F. Supp. 2d 578, 587 (N.D.Tex.2002).

a)Existing Facilities

(1)Defendant must remove architectural barriers and those communication barriers that are structural in nature.42 U.S.C. § 12182(b)(2)(A)(iv); 28 C.F.R. § 36.304(a).[5]

(2)Defense—barrier removal is not “readily achievable.”42 U.S.C. § 12182(b)(2)(A)(iv); 28 C.F.R. § 36.304(a); MacClymonds v. IMI Investments, Inc., 2007 WL 1306803, at *4 (S.D. Tex. Apr. 5, 2007).“Readily achievable” means easily accomplished, and not requiring much difficulty or expense. 42 U.S.C. §12181(9); 28 C.F.R. §36.104. See also Kennedy v. Wichita County Heritage Society, 2008 WL 2511755, at *3–4 (N.D. Tex. June 23, 2008) (cost of approximately $20,000 to $50,000 was readily achievable under the circumstances). Title III does not define “difficulty,” but it includes considerations beyond just cost. Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 135 (2005) (barrier removal that would violate international legal obligations would create serious difficulties and have a substantial impact on its operation, and thus would not be “readily achievable”). Those considerations may include any “real” threat to safety. Id. at 136–137. There are various factors to consider in assessing “readily achievable.” 42 U.S.C. §12181(9)(A)–(D); 28 C.F.R. §36.104; MacClymonds v. IMI Investments, Inc., 2007 WL 1306803, at *4 (S.D. Tex. Apr. 5, 2007); 28 C.F.R. Part 36 App. B, § 36.104; Technical Assistance Manual § III-4.4200. Not readily achievable is a lower standard than “undue burden,” but the same factors apply. 28 C.F.R. Part 36 App. B, §§ 36.104 and 36.304. Barrier removal is not “readily achievable”' if it would threaten or destroy the historic significance of a building or facility that is legally designated as historic. 28 C.F.R. Part 36 App. B, § 36.304. Compare Kennedy v. Wichita County Heritage Society, 2008 WL 2511755, at *3 (N.D. Tex. June 23, 2008) (ramp would not destroy historical character). Note that even if the defendant can show a particular barrier removal is not readily achievable, it must still make available its goods, services, facilities, privileges, advantages, and accommodations through alternative methods (that do not fully comply with specified requirements) if readily achievable and would not pose a significant risk to health or safety. 42 U.S.C. §12182(b)(2)(A)(v); 28 C.F.R. §§36.304(d)(2) and 36.305(a). Examples of this might be curb service, home delivery, retrieving merchandise from inaccessible shelves, and relocating activities to accessible locations. 28 C.F.R. §36.305(b). Note thatcarrying someone in a wheelchair is permitted only in manifestly exceptional cases.28 C.F.R. Part 35 App., § 35.150 (Title II); Technical Assistance Manual § II-5.2000 (Title II).[6]

(3)Elements—The statutory language suggests that the two issues in such a claim include: 1) whether the facilities have architectural barriers; and 2) if so, whether removal of those barriers is readily achievable. MacClymonds v. IMI Investments, Inc., 2007 WL 1306803, at *4 (S.D. Tex. Apr. 5, 2007).

(4)Burden of proof—Many court hold that the plaintiff has the initial burden of introducing evidence tending to show that the proposed method of removal of an existing architectural barrier is readily achievable. If the plaintiff meets this burden of production, the ultimate burden falls on the defendant to prove that the proposed barrier removal method is not readily achievable. Kennedy v. Wichita County Heritage Society, 2008 WL 2511755, at *3 (N.D. Tex. June 23, 2008) (finding plaintiff’s evidence sufficient); MacClymonds v. IMI Investments, Inc., 2007 WL 1306803, at *5 (S.D. Tex. Apr. 5, 2007); Lewis v. Dallas Soundstage, Inc., 167 S.W.3d 906, 913 (Tex. App.–Dallas 2005, no pet.).This latter analysis should be case-by-case. MacClymonds v. IMI Investments, Inc., 2007 WL 1306803, at *4 (S.D. Tex. Apr. 5, 2007); 28 C.F.R. Part 36 App. B, §§ 36.104 and 36.304.

(5)Technical specifications—Barrier removal should comply with ADAAG to the extent readily achievable.28 C.F.R. §36.304(d);Technical Assistance Manual § III-4.4300.See also MacClymonds v. IMI Investments, Inc., 2007 WL 1306803, at *4 (S.D. Tex. Apr. 5, 2007). But proving technical violations of the ADAAG may not be sufficient to confer liability because the plaintiff must establish not only that architectural barriers exist, but also that the plaintiff’s proposed method of removal is readily achievable. MacClymonds v. IMI Investments, Inc., 2007 WL 1306803, at *6 (S.D. Tex. Apr. 5, 2007).Also, barrier removal in pre-existing buildings need not exceed the standards for alterations, 28 C.F.R. §36.304(g)(1), or if there are no relevant standards for alterations, shall not exceed the new construction standards. 28 C.F.R. §36.304(g)(2).

Element-by-Element Safe Harbor. The latest amendments to the Title III regulations clarify that if certain elements in existing facilities already comply with the 1991 ADAAG and are not being altered, covered entities need not bring them into compliance with the 2010 Standards until they are altered. See 28 C.F.R. § 36.304(d)(2) and (g)(4), and § 36.403(a)(2), as amended, 75 Fed. Reg. 56236, 56254–56255, 56288–56290 (Sept. 15, 2010).

(6)For examples of barrier removal likely to be readily achievable, see 28 C.F.R. §36.304(b).

(7)Special provisions relate to seating in assembly areas, 28 C.F.R. §36.308(a), and exams and courses. 28 C.F.R. § 36.309.See also Rush v. National Bd. of Medical Examiners, 268 F. Supp. 2d 673 (N.D. Tex. 2003); Badgley v. Law School Admission Council, Inc., 2000 WL 33225418 (N.D. Tex. Aug. 24, 2000

The latest amendments to the Title III regulations clarify the rules regarding accessible seating in assembly areas. See 28 C.F.R. §§ 36.308 and 36.406(f), as amended, 75 Fed. Reg. 56236, 56255, 56257, 56295–56296 (Sept. 15, 2010). They also clarify the rules regarding accommodations for examinations. See 28 C.F.R. § 36.309(b), as amended, 75 Fed. Reg. 56236, 56255, 56296–56298 (Sept. 15, 2010).

b)Alterations