A Mandate for Miniature Golf ADA Compliance
By Arne Lundmark
A revision to the Americans with Disabilities Act (ADA) states that on or after March 15, 2012, public accommodations, which include miniature golf facilities, must remove architectural barriers to elements subject to the new requirements in the 2010 Standards when it is "readily achievable" to do so.
The ball is now in the court of miniature golf owners to interpret the barrier removal requirements and comply. This article focuses on the immediate issue of removing "readily achievable" barriers.
A word of caution is needed: No one knows all the issues and answers, so my comments are my best efforts to interpret and comply with the regulations. I have participated on committees, spoken with representatives of the U.S. Access Board and have accomplished an extensive review of the regulations. But if there is a question of law and facts, I leave that to the attorneys and others. I am simply trying to provide insight to meet the deadline and help owners develop priorities.
Before anyone jumps out of their skin in surprise or rushes to their local congressperson, this may not be as bad as it sounds, and the time for reaction has mostly passed. This is not a new issue and the deadline is beginning to show up in our rear-view mirrors.
How did this happen? Did we not know this was coming? Can we still question the rules and regulations? Where do we begin? What are barriers? What does "readily achievable" mean? What if it can't be done? What if we don't have the funds?
Yes, we knew this was coming. Yes, we can still have questions answered. To find answers to the balance of these questions, it is helpful to review how we arrived at this moment.
Over the past 20 years, committees from the International Association of Amusement Parks and Attractions (IAAPA) and other organizations have worked with representatives of the Access Board and the Department of Justice, seeking to create regulations that are fair to miniature golf course owners and to people with disabilities. While they did a good job, there are still questions to be resolved and that effort is ongoing. They have been guided by trying to resolve this statement from the "Primer:" "People with disabilities continue to face architectural barriers that limit or make it impossible to access the goods or services offered by businesses."
There are three ADA compliance components that impact miniature golf courses:
- New construction now and after March 15, 2012.
- Removal of barriers that is readily achievable on existing courses.
- Alterations to existing miniature golf courses after March 15, 2012.
Compliance for new courses and alterations to existing courses will be an ongoing requirement after the 2012 deadline. New construction is straightforward, and we have been building accessible courses for at least 15 years based on scoping provisions of the future regulations. But the devil is in the details, so you have to do your homework. For example, with the compliance to regulations that other businesses have already dealt with, there are specific provisions for signs, parking spaces, counters and other items.
Alterations to existing miniature golf courses after March 15, 2012, will be governed by the regulations now in place, and there are a few unanswered questions. The industry's effort to find answers to these questions is in process. Our quest for knowledge may not be fully satisfied until we deal with real-life situations after the deadline.
The removal of barriers is the trigger point for anyone to question why a particular miniature golf course has not removed barriers. Owners, operators, designers and builders are expected to know the law, so lack of knowledge may not be an adequate defense.
So what are the barriers that need to be removed? According to an Access Board spokesperson, "The new construction requirements for miniature golf courses can be used as a measuring stick for identifying barriers. The requirement is that you remove barriers when it is 'readily achievable.'"
Examples of new course requirements include, but are not limited to accessible holes, slope requirements and related standards for accessible routes, tee areas and exits, and passage dimensions and space requirements that allow those with disabilities to move around obstacles and on the miniature golf play area.
However, some probable requirements may be found in sections not specifically listed under the miniature golf requirements, such as protrusions along the circulation path, overhead clearance, stairway and handrail details, surfaces, toilet rooms and counters.
Developing an action plan related to the removal of barriers and future compliance will be determined by answering these tougher questions:
- What are the barriers on a miniature golf course?
- How many holes are accessible?
- Does the accessible route connecting the accessible route comply?
These statements from "Primer" help miniature golf owners understand the term "readily achievable":
The ADA requires that small businesses remove architectural barriers in existing facilities when it is "readily achievable" to do so. Readily achievable means "easily accomplishable without much difficulty or expense." This requirement is based on the size and resources of a business. So, businesses with more resources are expected to remove more barriers than businesses with fewer resources.
Determining what is readily achievable will vary from business to business and sometimes from one year to the next. Changing economic conditions can be taken into consideration in determining what is readily achievable. Economic downturns may force many public accommodations to postpone removing some barriers. The barrier removal obligation is a continuing one and it is expected that a business will move forward with its barrier removal efforts when it rebounds from such downturns.
This quote from the "Primer" should help clarify the issue: "The ADA strikes a careful balance between increasing access for people with disabilities and recognizing the financial constraints many small businesses face. Its flexible requirements allow businesses confronted with limited financial resources to improve accessibility without excessive expense."
According to the Access Board spokesperson, operators should review their existing courses and strive to make at least 50 percent of the holes accessible to the extent that it is "readily achievable." This is an ongoing obligation and is intended to be accomplished over time.
The rules for new courses state that "for at least 50 percent of holes on miniature golf courses shall comply with 1007.3.---"Where possible, providing access to all holes on a miniature golf course is recommended. If a course is designed with the minimum 50 percent accessible holes, designers or operators are encouraged to select holes which provide for an equivalent experience to the maximum extent possible."
In the long view, "readily achievable barrier" removal needs to start outside of the course and focus on how an individual with a disability would first get into the facility and eventually to the course. This is illustrated in the examples the DOJ uses for prioritizing "barrier removal."
The following information from the "Primer" may be helpful for owners and their accountants:
To assist small businesses to comply with the ADA, the Internal Revenue Service (IRS) Code includes a Disabled Access Credit (Section 44) for businesses with 30 or fewer full-time employees or with total revenues of $1 million or less in the previous tax year. Eligible expenses may include the cost of undertaking barrier removal and alterations to improve accessibility, providing sign-language interpreters, or making material available in accessible formats such as Braille, audiotape, or large print. Section 190 of the IRS Code provides a tax deduction for businesses of all sizes for costs incurred in removing architectural barriers in existing facilities or alterations. The maximum deduction is $15,000 per year.
The call for action is now, and I encourage all miniature golf owners to determine their priorities and develop a plan for removing barriers.
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