Following are PROPOSED REGULATIONS governing DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION in the COMMONWEALTH OF MASSACHUSETTS.

 

Pursuant to Massachusetts statute and regulation, 

the public is invited to comment upon these regulations, through April 14, 2000.

 


 


TITLE 804:

MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION

 

CHAPTER 5.00:

NON-DISCRIMINATION BY PLACES OF PUBLIC ACCOMMODATION 

BASED ON DISABILITY

 


Section 5.01        PURPOSE

Section 5.02        APPLICABILITY

Section 5.03        RELATIONSHIP TO OTHER LAWS

Section 5.04        DEFINITIONS

Section 5.05        GENERAL REQUIREMENTS

Section 5.06        SPECIFIC REQUIREMENTS


 

Section  5.01        PURPOSE

 

The purpose of 804 C.M.R 5.00 et. seq. is to implement the disability non-discrimination provisions of the Public Accommodations Statute, G.L. c. 272 92A and 98.

 

Section 5.02        APPLICABILITY

 

804 C.M.R. 5.00 and G.L. c. 272, 92A and 98 prohibit discrimination as described herein by any person or entity that owns, leases, leases to, or operates any place of public accommodation, as well as discrimination concerning a place of public accommodation by persons who neither own, lease nor operate the place of public accommodation.

 

Section 5.03        RELATIONSHIP TO OTHER LAWS

 

804 C.M.R. 5.00 does not invalidate or limit the remedies, rights, and procedures of any Federal laws, or other State and local laws (including State common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them. 804 C.M.R. 5.00 does not apply where an alternative, comprehensive state administrative enforcement procedure is available, such as the Architectural Access Board regulations, 521 C.M.R. 1, et seq., or the Special Education regulations, 603 C.M.R. 28.00, et. seq.

 

Section 5.04        DEFINITIONS

 

The following terms as used in 804 C.M.R. 5.00 shall have the following meanings:

 

(1)        Current illegal use of drugs

 

means illegal use of drugs that occurred recently enough to justify a reasonable belief that a person’s drug use is current or that continuing use is a real and ongoing problem.

 

 

(2)        Disability

 

means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.

 

(a)            Physical or mental impairment means:

 

1)     Any physical or mental disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; muscoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine;

 

2)     Any mental or physiological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities;

 

3)     The phrase physical or mental impairment includes, but is not limited to, such contagious and non-contagious diseases and conditions, as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.

 

(b)           Major Life Activities

 

are those basic activities that the average person in the general population can perform with little or no difficulty. Examples of major life activities include functions such as: caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. The determination of whether an impairment substantially limits one or more major life activities shall be made without regard to the availability of medication, assistive devices, or other mitigating measures.

 

(c)            Substantially limits

 

means an impairment that prohibits or significantly restricts an individual in his or her ability to perform a major life activity as compared to the ability of the average individual in the general population to perform the same activity. The determination of whether an impairment substantially limits a major life activity depends on the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long term impact of the impairment.

 

(d)           Has a record of such an impairment

 

means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

 

(e)            Is regarded as having an impairment

 

means:

 

1)     Has a physical or mental impairment that does not substantially limit a major life activity but that is treated by an individual or entity as constituting such a limitation; or

2)     Has a physical or mental limitation that substantially limits a major life activity only as a result of the attitudes of others towards such an impairment; or

3)     Has none of the impairments defined in paragraphs (e) (1) or (2) but is treated by an individual or entity as having such an impairment.

(3)    Drug

 

means a controlled substance, as set forth in the Massachusetts Controlled Substance Act (G.L. c. 94C, 3 and 31).

 

(4)        Illegal use of drugs

 

means the use of one or more drugs, the possession or distribution of which is unlawful under the Massachusetts Controlled Substance Act (G.L. c. 94C, 1 et seq.) The term illegal use of drugs does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by G.L. c. 94 C or other provisions of Federal and State law.

 

(5)        Individual with a disability

 

means a person who has a disability. The term “individual with a disability” does not include an individual who is currently engaging in the illegal use of drugs when a place of public accommodation acts on the basis of such use.

 

(6)    Place of public accommodation

 

means any place which is open to and accepts or solicits patronage from the general public, whether such places are licensed or unlicensed, or whether they are privately or publicly owned and operated. The examples listed below are not intended to limit the general definition of what may be considered places of public accommodation.

 

Examples of places of public accommodation include the following:

 

(a)places of lodging, including hotels, inns, motels, campgrounds, resorts, and other short term lodging facilities;

 

(b)            restaurants, bars, and other establishments serving food or drink;

 

(c) theaters, concert halls, sports stadiums, and other places of entertainment;

 

(d)            auditoriums, convention centers, lecture halls, houses of worship, and other places of public gathering;

 

(e)sales and rental establishments, including stores, shopping centers, automobile rental agencies, and other retail establishments;

 

(f)  service establishments, including laundromats, dry-cleaners, banks, barber shops, travel agents, gas stations, funeral parlors, employment agencies, and providers of professional services such as lawyers, accountants, and insurance agents;

 

(g)            health care facilities, including dental and medical offices, pharmacies, clinics, hospitals, nursing homes, and other health facilities;

 

(h)            transportation vehicles of all types and transportation stations, terminals, depots, platforms and facilities appurtenant thereto;

 

(i)   museums, libraries, galleries, and other places of public display or collection;

 

(j)   parks, zoos, amusement parks, and other places of recreation;

 

(k) schools, including nursery, elementary, secondary, undergraduate, postgraduate, vocational, and other places of education;

 

(l)   child care or enrichment centers, senior citizens centers, homeless shelters, food banks, adoption agencies, and other social service establishments;

 

(m)           gymnasiums, health spas, bowling alleys, swimming pools, beaches, golf

       courses, and other places of exercises or recreation;

 

(n)            public sidewalks, streets, highways, boardwalks, and other public ways;

 

(o)            public spaces and offices of state and local government entities including court rooms, hearing rooms, meeting rooms, waiting areas, polling places, visitors’ galleries, public information counters, and displays.

 

(7)        Private club

 

means a club or establishment that is not open to and does not accept or solicit the patronage of the general public. In determining whether a club or establishment is private, factors to be considered include: selectivity in membership, the existence of formal membership procedures, the extent of use of club or establishment facilities by nonmembers, the nature of internal governance, whether the club or establishment advertises, and the predominance of a profit motive for the existence of the club or establishment.

 

(8)        Qualified interpreter

 

means an interpreter who is able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary.

 

(9)        Readily achievable

 

means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include the following:

 

(a)    The nature and cost of the action needed under 804 C.M.R. 5.00;

 

(b)            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;

 

(c)     The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to the parent corporation or entity;

 

(d)            If applicable, the overall financial resources of the parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees and the number, type, and location of its facilities;

 

(e)    If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure; and

 

(f)      Functions of the workforce of the parent corporation or entity.

 

(10)        Service animal

 

means any guide dog, signal dog, or other animal trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.

   

(11)        Undue burden

 

means significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered include the following:

 

(a)    The nature and cost of the action needed under 804 C.M.R. 5.00;

 

(b)       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 to safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;

 

(c)     The geographic separateness, and the administrative or fiscal relationship of

      the site or sites in question to any parent corporation or entity;

 

(d)      If applicable, the overall financial resources of any parent company 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

 

(e)    If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

 

 

 

 

Section 5.05        GENERAL REQUIREMENTS

 

(1)        Prohibition of discrimination

 

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 accommodation in a place of public accommodation, subject to the defenses set forth in 5.05(3).

 

(a)    Landlord and Tenant Responsibilities

Both the landlord who owns a building that houses a place of public accommodation and the tenant who owns or operates a place of public accommodation are subject to the requirements of 804 C.M.R. 5.00.

 

(b)            Donated Space

 

Whoever utilizes donated space as a place of public accommodation is subject to the requirements of 804 C.M.R. 5.00.

 

(2)        Prohibited Activities

 

(a)Denial of Participation

 

A place of public accommodation may not subject an individual or class of individuals, on the basis of disability or disabilities of the individual or class, directly or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of the place of public accommodation.

 

(b)            Participation in unequal benefits

 

A place of public accommodation may not afford an individual or class of individuals, on the basis of a disability or disabilities of the individual or class, directly, or through contractual, licensing or other arrangements, with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals of the place of public accommodation.

 

(c) Separate benefit

 

A place of public accommodation may not provide an individual or class of individuals, on the basis of a disability or disabilities of the individual or class, directly or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation in a place of public accommodation that is different or separate from that provided to other individuals, unless the action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others.

 

(3)        Integrated Settings

 

(a)General

 

A place of public accommodation shall afford goods, services, facilities, privileges, advantages, and accommodations to an individual with a disability in the most integrated setting appropriate to the needs of the individual.

 

(b)            Opportunity to participate

 

Notwithstanding the existence of separate or different programs or activities provided in accordance with 804 C.M.R. 5.04 and 5.05, a place of public accommodation may not deny an individual with a disability an opportunity to participate in programs or activities in a place of public accommodation that are not separate or different.

 

(c) Accommodations and services

 

Nothing in 804 C.M.R. 5.00 shall be construed to require an individual with a disability to accept an available accommodation, service, opportunity, or benefit that the individual chooses not to accept.

 

  

(4)        Administrative Methods

 

A place of public accommodation may not, directly or through contractual or other arrangements, utilize standards or criteria or methods of administration that have the effect of discriminating on the basis of disability, or that perpetuate the discrimination of others who are subject to common administrative control.

 

(5)        Association

 

A place of public accommodation may not 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.

 

(6)         Retaliation or Coercion

 

(a)    No person or entity may discriminate against any individual in a place of 

public accommodation because that individual has opposed any act or practice made unlawful by 804 C.M.R. 5.00, or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under G.L. c. 272 92 A and 98 or 804 C.M.R. 5.00.

 

(b)            No person or entity may coerce, intimidate, threaten, or interfere with any

individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by G.L. c. 272, 92A and 98 or 804 C.M.R. 5.00.

 

(c)     Illustrations of prohibited conduct include, but are not limited to:

 

1) Coercing an individual to deny or limit the benefits, services or advantages to which he or she is entitled under G.L. c. 272, 92A and 98 or 804 C.M.R. 5.00;

 

2) Threatening, intimidating, or interfering with an individual with a disability who is seeking to obtain or use the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation;

 

3) Intimidating or threatening any person because that person is assisting or encouraging an individual or group entitled to claim the rights granted or protected by G.L. c. 272, 92A and 98 or 804 C.M.R. 5.00 to exercise those

rights; or

 

4) Retaliating against any person because that person has participated in any investigation or action to enforce G.L. c. 272, 92A and 98 or 804 C.M.R. 5.00.

 

 

(7)    Place of Public Accommodation Located in Private Residences

 

(a)    When a place of public accommodation is located in a private residence, the portion of the residence used exclusively as a residence is not covered by 804 C.M.R. 5.00, but that portion used exclusively in the operation of the place of public accommodation or that portion used both for the place of public accommodation and for residential purposes is covered by 804 C.M.R. 5.00.

 

(b)            The portion of the residence covered under 804 C.M.R. 5.04(7)(a) extends to

those elements used to enter the place of public accommodation, including the front sidewalk, if any, the door or entryway, and hallways; and those portions of the residence, interior or exterior, available to or used by customers or clients, including bathrooms.

 

(8)         Illegal Use of Drugs

 

(a)General

Except as otherwise provided in 804 C.M.R. 5.04(8), 804 C.M.R. 5.00 does not prohibit discrimination based on that individual’s current illegal use of drugs. A place of public accommodation shall not discriminate against an individual in a place of public accommodation if that person is not currently using illegal drugs but:

 

1)   previously engaged in illegal use of drugs and:

 

a)    has successfully completed a supervised drug rehabilitation 

program or has otherwise been rehabilitated successfully; or

b)   is participating in a supervised rehabilitation program; or

 

2)   is erroneously regarded as engaging in such illegal drug use.

 

(b)            Health and Drug Rehabilitation Services

 

A place of public accommodation shall not deny health service, or services provided in connection with drug rehabilitation, to an individual on the basis of that individual’s current illegal use of drugs, if that individual is otherwise entitled to such services. A drug rehabilitation or treatment program may deny participation to individuals who engage in illegal drug use while they are in the program.

 

(9)        Smoking

 

804 C.M.R. 5.00 does not preclude the prohibition of, or the imposition of restrictions on, smoking in a place of public accommodation.

 

 

(10)        Maintenance of Accessible Features

 

(a)General Maintenance

A place of public accommodation shall maintain in fully working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by G.L. c. 272, 92A and 98 or 804 C.M.R. 5.00.

 

(b)            Isolated or Temporary Interruptions

804 C.M.R. 5.00 does not prohibit isolated or temporary interruptions in services due to maintenance or repairs.

 

(11)        Insurance

 

A place of public accommodation shall not refuse to serve an individual with a disability because its insurance company conditions coverage or rates on the absence of individuals with disabilities.

 

Section 5.06        SPECIFIC REQUIREMENTS

 

(1)        Eligibility Criteria

 

(a)General

 

A place of public accommodation shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with disabilities or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered.

 

(b)            Safety

 

A place of public accommodation may impose legitimate safety criteria that are necessary for safe operations. Safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.

 

(c) Surcharges

 

A place of public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the cost of measures such as the provision of auxiliary aids and services, barrier removal, alternatives to barrier removal, and other reasonable modifications that are required to provide that individual or group with nondiscriminatory treatment required by G.L. c. 272, 92A and 98 or 804 C.M.R. 5.00.

 

 

(2)        Reasonable Accommodation

           

(a)General

 

A place of public accommodation shall provide reasonable accommodation to individuals with disabilities when such accommodation is necessary to provide individuals with disabilities with full and equal goods, services, facilities, privileges, advantages, or accommodations, subject to the defenses set forth in 804 C.M.R. 5.05 (3) below.

 

(b)            Examples of Reasonable Accommodation

 

1) Reasonable modification of policies, practices, or procedures

 

A place of public accommodation shall make reasonable modification of policies, practices, or procedures where such modification is necessary to provide individuals with disabilities with full and equal goods, services, facilities, privileges, advantages, or accommodations.

 

2) Service animals

 

A person or entity shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.

 

3) Check-out aisles

 

A store with check-out aisles shall ensure that an adequate number of accessible check-out aisles are kept open during store hours or shall otherwise modify its policies and practices to ensure that an equivalent level of convenient service is provided to individuals with disabilities

is provided to others.

               

                 4) Provision of auxiliary aids and services

 

A place of public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. Auxiliary aids and services include: equipment, devices, materials, and services necessary to provide effective communication with individuals with disabilities.

 

Examples of auxiliary aids and services include:

 

a)    Qualified interpreters, note takers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening devices, telephones compatible with hearing aids, open and closed captioning, closed caption decoders, test telephones (TTYs), videotext displays, and other effective methods of making aurally delivered materials available to people who are deaf or hard of hearing;

                                   

b)   Qualified readers, taped texts, audio recordings, Brailled materials, large print materials, or other effective methods of making visually delivered materials available to individuals with visual impairments;

 

c)    Acquisition or modification of equipment or devices;

 

d)   Other similar services and actions.

 

5) Removal of Barriers

 

a)    General

A place of public accommodation shall remove architectural barriers including communication barriers that are structural in nature, where such removal is readily achievable (i.e. easily accomplishable and able to be carried out without much difficulty or expense).

 

b)   Examples

Examples of steps to remove barriers include but are not limited to, the following actions:

 

i.                     Installing ramps;

ii.                    Making curb cuts in sidewalks and entrances;

iii.                  Repositioning shelves;

iv.                  Rearranging tables, chairs, vending machines, display racks, and other furniture;

v.                   Repositioning telephones;

vi.                  Adding raised markings on elevator control buttons;

vii.                Installing flashing light alarms;

viii.               Widening doors;

ix.                  Installing offset hinges to widen doorways;

x.                   Eliminating a turnstile or providing an alternative accessible path;

xi.                  Installing accessible door hardware;

xii.                Installing grab bars in toilet stalls;

xiii.               Rearranging toilet partitions to increase maneuvering space;

xiv.              Insulating lavatory pipes under sinks to prevent burns;

xv.                Installing a raised toilet seat;

xvi.              Installing a full length bathroom mirror;

xvii.             Repositioning the paper towel dispenser in a bathroom;

xviii.           Creating a designated accessible parking space;

xix.              Installing an accessible paper cup dispenser at an existing inaccessible water fountain;

xx.                Removing high pile, low density carpeting; or

xxi.              Installing vehicle hand controls.

(3)        Defenses

 

(a)            Direct Threat

 

1)   A place of public accommodation need not permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of that place of public accommodation when that individual poses a direct threat to the health or safety of others.

 

2)   Direct threat means a significant risk of substantial harm to the health or safety of others that cannot be eliminated by a reasonable accommodation.

 

3)   In determining whether an individual poses a direct threat to the health or safety of others a place of public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable accommodation will mitigate the risk.

           

(b)            Fundamental Alteration

 

1)   A place of public accommodation need not make any accommodation if it can show that making that accommodation would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations offered by the place of public accommodation.

 

2)   When making the accommodation would result in a fundamental alteration, the place of public accommodation shall provide an alternative accommodation that is effective in providing individuals with disabilities full and equal accommodations, advantages, facilities, and privileges to the maximum extent possible.

                       

(c) Undue Burden

 

1)   A place of public accommodation need not make any accommodation if it can show that making the accommodation would result in an undue burden, i.e. significant difficulty or expense.

                                   

2)   When making the accommodation would result in an undue burden, the place of public accommodation shall provide an alternative accommodation that is effective in providing individuals with disabilities full and equal goods, services, facilities, privileges, advantages, or accommodations to the extent that such alternative accommodation does not result in an undue burden.

 

3)   Barrier Removal is Not Readily Achievable

 

a)          a place of public accommodation shall not be required to remove barriers if it can show that removal of barriers is not readily achievable, (i.e. easily accomplished and able to be carried out without much difficulty);

 

b)         When barrier removal is not readily achievable, the  place of public accommodation shall provide individuals with disabilities full and equal goods, services, facilities, privileges, advantages, or accommodations through alternative methods if those methods are readily achievable. Examples of alternatives to barrier removal include, but are not limited to, providing curb service or home delivery, retrieving merchandise from inaccessible shelves or racks, and relocating activities to accessible locations.

                       

(d)            Program Accessibility

 

It shall be a defense to a claim of failure to remove barriers that the place of public accommodation is owned or operated by state or local government or any department, agency, special purpose district, or other instrumentality thereof, and that the public accommodation has achieved program accessibility within the meaning of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, or Title II of the Americans With Disabilities Act, 42 U.S.C. 12131, et. seq.

           

(4)        Religious Institutions

 

The provisions of 804 C.M.R. 5.00 do not bar any religious or denominational institution or organization operated for charitable or educational purposes, which is operated, supervised, or controlled by or in connection with a religious organization, from limiting admission to that institution or organization or from giving preference to persons of the same religion or denomination. Nor is any religious or denominational institution or organization barred from taking any action which is calculated by the institution or organization to promote the religious principles for which it is established and maintained.

 

(5)         Personal Devices or Services

 

A place of public accommodation need not provide its customers, clients, or participants with personal devices such as wheelchairs; individually prescribed devices such as prescription eyeglasses or hearing aids; or substantial assistance of a personal nature.

 

(6)         Special Inventory or Orders

 

A place of public accommodation need not alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities, such as Brailled or taped books, closed captioned video tapes, special lines of clothing or special foods. If a place of public accommodation makes special orders on request for unstocked goods in the normal course of its operation, then it shall order accessible or special goods at the request of an individual with a disability, provided that doing so is readily achievable.