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JAN 26 1993
Mr. J. Keith Ausbrook Collier, Shannon & Scott 3050 K Street, NW Washington, DC 20007 Dear Mr. Ausbrook: This letter is in response to your inquiry on behalf of the American Car Rental Association ("ACRA") to determine whether its members must provide vehicles equipped with hand controls when doing so would be readily achievable, and to identify the circumstances under which providing vehicles equipped with hand controls would be readily achievable. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. This letter provides informal guidance to assist you in understanding the ADA's requirements. However, it does not constitute a legal interpretation or legal advice and it is not binding on the Department of Justice. Title III of the ADA imposes certain obligations on places of public accommodation. The Act lists twelve types of entities as places of public accommodation, including the category of rental establishments. Please see the enclosed title III regulation at section 36.104 on pages 35594 and 35551 for more on the definition of a place of public accommodation. The owners and operators of places of public accommodation may not discriminate on the basis of an individual's disability when providing goods and services to that person. To prevent such discrimination, the owners and operators must remove barriers to accessibility of their goods and services if removal is readily achievable, i.e., easily accomplished and able to be carried out without much difficulty or expense. Installation of vehicle hand controls is an example included in the title III regulation of a step towards barrier removal. Please see the regulation at section 36.304 on page 35597 and pages 35568-70 for
further discussion. cc: Records, Chrono, Mobley, Wodatch, FOIA, Friedlander, Breen udd:Mobley:ACRA.Letter 01-01857 -2-
The failure to provide hand controls is considered a barrier that must be removed if providing hand controls is readily achievable. Whether it is readily achievable depends on a host of factors such as those mentioned in your letter at page two. Your main concern appears to be the cost of obtaining and installing hand controls. As cited above, expense is one factor that may properly be weighed in determining whether ACRA's members must obtain and install hand controls on rental cars. The Department has declined to establish any kind of numerical formula for determining whether an action is readily achievable. Instead, the Department has approved a flexible case-by-case balancing of the listed factors. Please see the enclosed title III regulation at section 36.104 on pages 35594 and 35554 for further discussion. The readily achievable standard also addresses legitimate safety considerations. To the extent that certain vehicle models cannot safely be fitted with hand controls, provision of hand controls on those vehicles is not readily achievable. However, for a safety concern to be considered legitimate it must be based on actual risks and must be necessary for the safe operation of the services provided. Another factor to be considered under the readily achievable standard is whether or not the customer has provided the rental car company with adequate notice. What constitutes adequate notice will vary depending on factors such as the remoteness of the location, the availability of trained mechanics, the availability of hand controls, and the size of the fleet. For example, notice of an hour or less may be adequate at a large city site where it is readily achievable to stock hand controls and to train mechanics in how to install them properly. On the other hand, notice of two days might be inadequate for a small, rural site where it is not readily achievable to keep hand controls in stock and where there is only a part-time mechanic who has been trained in the proper installation of controls. These examples should not be construed as hard and fast rules; in any given situation, a wide variety of factors must be weighed
to determine whether barrier removal is readily achievable. ACRA members should note that the obligation to engage in readily achievable barrier removal is a continuing one. Over time, barrier removal that initially was not readily achievable may later be required because of changed circumstances. For example, a site that has a full-time trained mechanic only during the summer months may have to shorten the notice period it requires of its customers during those months. I have also enclosed this Department's Title III Technical Assistance Manual which was written to guide individuals and entities having rights and obligations under the Act toward a 01-01858 -3fuller understanding of the law. Pertinent discussion is found at page two (definition of a place of public accommodation) and pages 28-32 (readily achievable barrier removal). I hope this information is useful to you in understanding the requirements of the ADA. Sincerely,
John L. Wodatch Chief Enclosures (2) Title III Technical Assistance Manual Title III Regulation 01-01859 Collier, Shannon & Scott Robert A. Collier (1917-1984) Attorneys-at-Law Kathleen Weaver Cannon Thomas F. Shannon Daniel J. Harrold William W. Scott 3050 K Street, N.W. T. Michael Jankowski David A. Hartquist Mary T. Staley R. Timothy Columbus Washington, D.C. 20007 Robert M. Huber
Lauren R. Howard R. Randal Black Paul D. Cullen Marcy M. Rehberger Kathleen E. McDermott Telephone: (202) 342-8400 William A. Henry Michael D. Sherman Telecopier: (202) 338-5534 J. Keith Ausbrook Mark L. Austrian Robin A. Fastenau John B. Williams Writer's Direct Dial Number Robin H. Gilbert Paul C. Rosenthal Martin A. Wright James R. Loftis, III William M. Guerry, Jr. John L. Wittenborn Bernard A. Nigro, Jr. Jeffrey L. Leiter (202) 342-8583 Dawnmarie D. Sanok* Michael R. Kershow Carolyn O. Tillman Jeffrey S. Beckington Kerrie L. Hook Judith L. Oldham January 31, 1992 Alexander H. Pitofsky Jeanne M. Forch Virginia R. Metallo Laurence J. Lasoff Joanna K. McIntosh Christopher J. MacAvoy Catherine A. Micklitsch Patrick J. Coyne Sean L. Collin** Karen M. Lockwood Andrea B. Wenderoth* Dennis J. Whittlesey Jason M. Branciforte Douglas W. Charnas Stephen A. Jones William C. MacLeod* Alan A. B. McDowell* Sean F. X. Boland William W. Funderburk, Jr.* Patrick B. Fazzone* Carole Klein K. Michael O'Connell Lisa A. Jose* Harold W. Furman II* Jeffrey S. Longsworth* William J. Rodgers John E. Villafranco* Elise Kirban *RESIDENT IN AUSTRALIA D. Hamilton Peterson* *NOT ADMITTED IN D.C. Mr. Phillip Breen Office on the Americans with Disabilities Act Civil Rights Division United States Department of Justice Washington, D.C. 20530 Dear Mr. Breen: The American Car Rental Association ("ACRA") respectfully requests that the Department of Justice ("DOJ") provide technical assistance in ensuring that its members comply with certain provisions of the public accommodations section of the Americans with Disabilities Act, Pub. L. 101-336, 104 Stat. 327 (1990) ("ADA") and the regulations issued thereunder,
which became effective on January 26, 1992. 56 Fed. Reg. 35,543 (1991). Specifically, ACRA seeks (1) to determine whether its members must provide vehicles equipped with hand-controls when doing so would be readily achievable and (2) to identify the circumstances under which providing vehicles equipped with hand-controls would be readily achievable. First, conflicting provisions of the regulations raise the question of whether car rental companies must provide vehicles equipped with hand-controls even if doing so would be readily achievable. On the one hand, Section 36.304(b)(21) identifies the installation of vehicle hand-controls as a barrier removal that is required if readily achievable. On the other hand, Section 30.307 specifically states that a public accommodation is not required to alter its inventory to include special goods that facilitate use by individuals with disabilities. Rental cars equipped with hand-controls could be considered altered inventory that facilitate use by individuals with disabilities. While car rental companies have historically made vehicles equipped with hand-controls 01-01860January 31, 1992 Page 2 available whenever possible, the extent of the obligation to provide such vehicles is rendered uncertain by these two provisions of the regulations. ACRA seeks your assistance in resolving this uncertainty. Second, if providing vehicles equipped with hand-controls is required if readily achievable, ACRA seeks to identify the relevant factors that apply to this industry in determining whether providing vehicles equipped with hand- controls is readily achievable. The ADA and the final regulations state that in determining whether any action is readily achievable the factors to be considered include: (1) the nature and cost of the action; (2) the overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site; (3) the geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity; (4) if applicable, the overall financial resources of any parent
corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and (5) if applicable, the type of operation or operations of any parent corporation or entity, including the compensation, structure, and functions of the workforce of the parent corporation. 56 Fed. Reg. at 35,594 (1991) (to be codified at 28 C.F.R. S 36.104). Under these requirements, ACRA seeks to identify with greater specificity the factors that are most relevant to providing vehicles equipped with hand-controls by car rental companies. Clearly, cost is a significant factor. The equipment costs approximately $200 and the installation and removal by a trained mechanic cost about $28, which is the average daily rental charge. While the cost of the equipment may be spread over many rentals, the installation and removal costs are incurred every time the vehicle must be so equipped. These recurring costs differentiate this type of accommodation from other "barrier removals" such as widening doors or removing carpeting. Thus, ACRA seeks to determine whether the length of the rental is relevant in evaluating whether providing a vehicle equipped with hand- controls is readily achievable. What is readily achievable for a week-long rental may not be readily achievable for a day's rental. 01-01861 January 31, 1992 Page 3 Similarly, an additional cost of providing the hand-controls may include the cost of delivery of the equipment from another location. May ACRA members properly consider this cost in determining whether providing the vehicle is readily achievable? ACRA is further concerned that even if the cost is not prohibitive, the availability of the equipment may be limited. With notice of at least 48 hours, most car rental companies believe that they would be able to obtain the equipment by overnight delivery. However, if ACRA members receive no notice or less than 48 hours notice, they may not be able to provide the equipment at all because the equipment is not kept on site or is already in use by another customer. Moreover, at least 48 hours notice assures that a mechanic is available to install the equipment; many locations, usually the smaller ones, do not have a mechanic continuously on-site or immediately
available to perform the installation. Thus, ACRA seeks to determine whether notice is relevant in evaluating whether such an accommodation is readily achievable. Finally, ACRA seeks to determine how many hand-controls a location must have on site based on all the relevant factors. ACRA members vary greatly in their operations. However, the availability of a mechanic, the overall financial resources, the impact on expenses of making the accommodation are almost all dependent upon the number of vehicles at a location and the historical frequency of requests for this equipment. Is there a specific number of hand-controls that ACRA members should have immediately available based on the size of the location and the historical frequency of requests? ACRA looks forward to working with you to resolve these issues. Thank you for your consideration. Sincerely, J. KEITH AUSBROOK Counsel for the American Car Rental Association 01-01862
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