US Department of Education NIDRR Technical Assistance Program

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Chapter 1: Coverage

Italicized text was added to the original Title III Technical Assistance Manual through supplements issued in 1993 and 1994.

Regulatory references: 28 CFR 36.102-36.104.

1.7000 Relationship to title II.

Public entities, by definition, can never be subject to title III of the ADA, which covers only private entities. Conversely, private entities cannot be covered by title II. There are many situations, however, in which public entities stand in very close relation to private entities that are covered by title III, with the result that certain activities may be affected, at least indirectly, by both titles.

ILLUSTRATION 1: A State department of parks provides a restaurant in one of its State parks. The restaurant is operated by X Corporation under a concession agreement. As a public accommodation, X Corporation is subject to title III of the ADA. The State department of parks, a public entity, is subject to title II. The parks department is obligated to ensure by contract that the restaurant will be operated in a manner that enables the parks department to meet its title II obligations, even though the restaurant is not directly subject to title II.

ILLUSTRATION 2: The City of W owns a downtown office building occupied by W's Department of Human Resources. The first floor is leased as commercial space to a restaurant, a newsstand, and a travel agency. The City of W, as a public entity, is subject to title II in its role as landlord of the office building. As a public entity, it cannot be subject to title III, even though its tenants are public accommodations that are covered by title III.

ILLUSTRATION 3: A private, nonprofit corporation operates a number of group homes under contract with a State agency for the benefit of individuals with mental disabilities. These particular homes provide a significant enough level of social services to be considered places of public accommodation under title III. The State agency must ensure that its contracts are carried out in accordance with title II, and the private entity must ensure that the homes comply with title III.

ILLUSTRATION 4: If an existing commercial facility is owned by a private entity covered by title III and rented to a public entity covered by title II, the private landlord does not become subject to the public entity’s title II program access requirement by virtue of the leasing relationship. The private landlord only has title III obligations. These extend to the commercial facility as a whole and to any places of public accommodation contained in the facility. The governmental entity is responsible for ensuring that the governmental programs and services offered in its rented space meet the requirements of title II.

Where public and private entities act jointly, the public entity must ensure that the relevant requirements of title II are met; and the private entity must ensure compliance with title III.

ILLUSTRATION: The City of W engages in a joint venture with T Corporation to build a new professional football stadium. The new stadium would have to be built in compliance with the accessibility guidelines of both titles II and III. In cases where the standards differ, the stadium would have to meet the standard that provides the highest degree of access to individuals with disabilities.

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