# 161 III-4.2100 III-4.4200 III-6.


February 28, 1995

The Honorable Bob Graham United States Senator Post Office Box 3050 Tallahassee, Florida 32315 Dear Senator Graham: This letter is in response to your inquiry on behalf of your constituent, XXXXXXXXXXXXX, regarding an alleged lack of wheelchair accessibility in the attractions at Walt Disney World (Disney) in Orlando, Florida. Specifically, XXXXXXXX complains that his wife, who uses a wheelchair, was prevented from enjoying several attractions at Disney because the attractions were not accessible to individuals who use wheelchairs. XXXXXXXX alleges that several of these attractions had been renovated after the effective date of the Americans with Disabilities Act (ADA), and that some attractions that were not renovated could easily be made accessible to individuals who use wheelchairs. Finally, XXXXXXXX was concerned about Disney's imposition of certain policies that limited use of some rides to individuals who can walk. The ADA requires public accommodations like Disney to provide "full and equal enjoyment" of their goods and services to individuals with disabilities. 42 U.S.C. 12182(a). Among the law's many provisions is a carefully crafted process for the development of physical access to places of public accommodation. The ADA places a relatively modest burden on existing facilities, requiring that they remove barriers to access where it is readily achievable, or "easily accomplishable and able to be carried out without much difficulty or expense." 42 U.S.C. 12182(2)(A) (iv); 28 C.F.R. 36.304(a). When a place of public

accommodation performs alterations or when it undertakes new construction, however, the law requires strict adherence to specific standards that are intended to provide maximum physical access for persons with disabilities. 42 U.S.C. 12183(a)(2); 28 C.F.R. 36.401 (new construction), 28 C.F.R. 36.402 (alterations), 28 C.F.R. 36.406, pt. 36, App. A (Standards for Accessible Design). Entities performing alterations that are more than mere cosmetic changes must ensure that any altered areas are readily accessible to and usable by persons with disabilities. 42 U.S.C. 12183(a)(2); 28 C.F.R. 36.402. In addition, if the alterations involve areas of primary function, entities must spend up to 20% of the costs of the alterations making the path of travel to the altered areas accessible. 42 U.S.C. 12183(a)(2); 28 C.F.R. 36.403. A "primary function" is a major activity for which the facility is intended and includes areas such as the lobby of a bank, the dining area of a cafeteria, and meeting rooms. 28 C.F.R 36.403(b). The "path of travel" to an altered area is defined as an unobstructed passageway from the entrance to the facility to the altered areas, and includes areas such as restrooms, telephones, and drinking fountains. 28 C.F.R. 36.403(e). While the Standards do not specifically address some elements of amusement park rides, other provision of the title III regulation may require purchase or modification of equipment in order to ensure full and equal employment of the facilities and to provide an opportunity to participate in the services and facilities. 28 C.F.R. ​ 36.201 and 36.202. The barrier removal requirements would also apply. Several of the attractions identified by XXXXXXXX are existing, and others, allegedly, have been altered. Without a thorough investigation into the nature of the changes that need to be made in order to provide access to the existing rides, it is impossible to determine whether Disney has violated the section of the law mandating "readily achievable" barrier removal. Similarly, the United States cannot determine whether Disney has violated the alterations provisions, short of an investigation of the date on which alterations were undertaken, the nature of the alterations, and a determination of whether the alterations, if more than cosmetic, involved areas of primary function. Finally, XXXXXXXX complains that his wife was not permitted onto a ride because of Disney's conclusion that she would be

unable to evacuate the ride in the event of its breakdown. Public accommodations are required by the law to make all reasonable modifications in their policies, practices and procedures that are necessary to ensure that individuals with disabilities enjoy their goods and services. 42 U.S.C. ​ 12182(b)(2)(A)(ii); 28 C.F.R. 36.302. Entities are, however, permitted to establish neutral "eligibility criteria" that are necessary for the safe operation of the place of public accommodation. 28 C.F.R. 36.301(b). Safety requirements must be based on actual risks, and not on stereotypes or generalizations about individuals with disabilities. 28 C.F.R. pt. 36, App. B at 605. A determination of whether the alleged criteria for the rides are discriminatory would require investigation into the particular circumstances involved. At this time, the Department has decided not to open an investigation of XXXXXXXXXX complaint. I am enclosing a copy of this Department's regulation implementing title III of the ADA and the Technical Assistance Manual that was developed to assist individuals and entities subject to the ADA to understand the requirements of title III. I hope that these materials and the discussion herein provide guidance to your constituent. Sincerely, Deval L. Patrick Assistant Attorney General Civil Rights Division