An ADA Analysis

The following was written by J. Richard Thesing, an attorney and former member of the United States Access Board. He is a person with disabilities. He has no financial or legal affiliation with SoloRider Management or its related parties. We provide this information because we think Mr. Thesing has provided a strong and comprehensive analysis of the issues.

The opinions and analysis presented below are those of J. Richard Thesing and do not necessarily reflect the opinions of SoloRider Management or its management.

WHY GOLF COURSES SHOULD PROVIDE SINGLE RIDER CARS, AND, WHY THEY MUST PROVIDE THEM

By J. Richard Thesing

I. What Are Single Rider Cars?

Single Rider cars are single occupant golf cars designed to travel on any part of the course, including tees and greens, without doing damage to the turf. They have hand controls and a swivel seat and can be operated by both able bodied and mobility impaired golfers. They are also known as "adaptive" golf cars or mobility aid devices.

All single rider cars allow the golfer to swing from a seated position. A few have seats that tilt up so a mobility impaired golfer with some leg strength can use the seat as a stability aid and swing from a standing position. These cars appeal to the greatest number of mobility impaired golfers since they can accommodate persons who swing from the seated position as well as those that need a golf car that puts them somewhere between a seated and standing position.

II. Why Golf Courses Should Provide Single Rider Cars.

A. The Golf Industry needs to increase rounds played in order to survive.

The golf industry has a serious problem. In 2003 there were 23 million fewer rounds played than in 2001 and more golf courses open each year.

Many new programs have been successful in bringing new golfers to the game--there are 2 million more golfers in 2003 than in 2001. How can it be that there are 2 million more golfers and 23 million fewer rounds played?

The explanation is that the number of people who play few rounds is increasing dramatically and the people who play lots of rounds are playing less. The number of people who played less than 8 rounds per year has increased by 3.2 million while the number of people who play 8 or more rounds per year decreased by 460,000 in the last four years.

B. Keeping Seniors in the game is critical.

The key to more rounds are the golfers who regularly play the most rounds getting more in that category and keeping them in the game. According to a recent study there were 27,400,000 golfers in the US in 2003 and only 22% were "avid golfers" -- played more than 25 rounds per year. Of the "avid golfers", those over 60 played almost twice as many rounds per year as those under 60. The over 60 group also spent more money annually on golf than those under 60. Not surprisingly, the category of persons who play the most rounds are retirees.

In another recent study, the following was determined:
In 2001, there were 155,000 retired persons who were avid golfers.
Their average age was 64.

In 2001, this group averaged 84 rounds and in 2002 they averaged 57 rounds.
This group of seniors played 4,154,000 less rounds in 2002 than in 2001.
45% said the primary factor for decreased play was health/injury.

Another demographic fact of great importance is that there are 78 million baby boomers and they start turning 60 in the latter part of 2005.

The most effective way for the golf industry to increase the rounds played is to turn the baby boomers in to avid golfers upon their retirement and keep the current seniors playing as long as they are able. However, every year a significant number of seniors leave the game due to physical reasons. Many of those could continue to play if a single rider car was available. This would result in hundreds of thousands more rounds per year!

If the golf industry is serious about increasing rounds played, each course would get two single rider cars and promote them among the seniors as a method of extending their playing years. This should be done NOW.

C. The Mobility Impaired are a large underserved market.

There are 6.8 million Americans who use assistive devices to help them with mobility. This group comprises 1.7 million wheelchair or scooter riders and 6.1 million users of other mobility devices, such as canes, crutches, and walkers. Only a very small percentage of the 6.8 million mobility impaired are golfers. This is understandable since very few courses offer a single rider car. By providing single rider cars and making an outreach to the mobility impaired community, the golf industry can reach millions of potential new golfers.

It is also important to recognize that mobility impaired golfers, like able-bodied golfers, bring friends with them to the course. Thus, the added rounds are not just from the user of the single rider but from those playing with the mobility impaired golfer.

D. Single riders can pay for themselves.

Single rider cars can just as easily be used by able bodied golfers as by the mobility impaired. If a course would put the single rider in their fleet and offer it to singles, the cost could be recovered and profit made during the useful life of the car.

E. Tax benefits to make the single rider almost free.

If a golf course in the prior year had revenues of $1,000,000 or less OR 30 or fewer full time employees, it is eligible for a tax credit of 50% of access expenditures up to a maximum expenditure of $10,250. In other words, half the cost of the car can be used as a tax credit.

Another provision of the tax code permits a business of any size to expense $15,000 of accessibility expenditures that would normally have to be capitalized. Thus, the total cost of a single rider can be expensed in the year of purchase.

F. A single rider will generate positive publicity.

A course that provides a single rider should be able to obtain local press coverage that will not only reflect well on the course but will make the public more aware of the course and the opportunities for the mobility impaired.

III. Why Golf Courses Must Provide Single Rider Cars

A. The Passage of The Americans With Disabilities Act (ADA)

With over 3500 persons attending, the largest group ever to witness a bill signing, the ADA was signed into law by President George H.W. Bush on July 26, 1990 in a ceremony at the White House. The ADA was a truly bipartisan measure with a 91 to 8 vote for passage in the Senate and a 377 to 28 vote in the House.

In the Findings and Purposes section of the ADA are the following statements:
Individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to society.

It is the purpose of this Ac to provide a clear mandate for the elimination of discrimination against individuals with disabilities.

President George W. Bush stated regarding the ADA:
Let me lay this principle out. No law should undermine the Americans With Disabilities Act. The ADA must stand. The ADA is a good law. George W. Bush, the son of President Bush who signed the Americans with Disabilities Act, fully supports the ADA in spirit and in law. I would not do otherwise. I want to make sure the law is fully complied with. The federal government has made a commitment to protecting civil rights. The ADA is a civil-rights legislation.

At the time he signed the ADA, President George H. W. Bush said, We must not and will not rest until every man and woman with a dream has the means to achieve it. Many disabled persons have a dream of playing golf and cannot do so until golf courses provide a single rider car.

B. The ADA applies to Golf Courses.

Section 302(a), The General Rule of the ADA states:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the services, facilities, privileges, advantages, of any place of public accommodation by any person who owns, leases or operates a place of public accommodation.

Title III of the ADA applies to PUBLIC ACCOMODATIONS AND SERVICES
OPERATED BY PRIVATE ENTITIES. Section 301 (7) defines public accommodations. Subsection (L) specifically states a gymnasium, health spa, bowling alley, golf course, or other place of recreation are public accommodations.

In very simple terms:
A person who cannot walk is a disabled person under the ADA and entitled to its protections.
The only way a person who cannot walk can play golf is by the use of a single rider car.
A golf course that provides golf cars to its customers but does not provide a single rider golf is discriminating against persons who cannot walk in violation of the ADA by denying them the services, facilities, privileges and advantage of the golf course.

The court in Dorsey v. American Golf Corporation, 98 F.Supp. 812 (E.D. Mich. 2000) found that a disabled golfer stated a valid claim of a violation of Section 302(a) by golf courses "that failed to provide specialized golf carts for disabled persons"

C. There are several specific sub-sections of the ADA that require a golf course to provide a single rider car.

i. Section 302(b)(2)(A)(ii) states:
discrimination includes a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations.

In view of all the reasons discussed in Part II above, Why Golf Courses Should Provide Single Rider Cars, the failure to modify the practice of providing golf cars for only able bodied customers is certainly unreasonable. Nor can there be a claim that single rider cars fundamentally alter the nature of the game of golf. The only difference between the standard golf car and the single rider is that the single rider can be operated by a person with a mobility impairment. The game of golf remains the same.

In the seminal case of PGA Tour Inc. v. Martin, 532 U.S. 661 (2001) interpreting this sub- section, the Supreme Court made a number of relevant findings.
Martin was a disabled person entitled to the protections of the ADA because he had a medical condition that prevented him from being able to walk an 18-hole golf course.
Permitting Martin to use a golf cart was both a reasonable and necessary solution to the problem of providing him access to the tournaments.
Title III of the ADA, by its plain terms, prohibits [the PGA Tour] from denying Martin equal access to its tours on the basis of his disability.
The use of a golf car does not fundamentally alter the nature of the game.

While Casey Martin did not request a single rider, there can be no question that the Courts analysis would equally apply had he been a paraplegic and requested a single rider rather than a regular golf car providing a single rider is œreasonable and necessary solution to the proble of providing access.

ii. Section 302(b)(2)(A)(iii) states:
discrimination includes a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.

The ADA defines auxiliary as incl acquisition or modification of equipment or devices. The acquisition of a single rider car is a step that is necessary for the mobility impaired to enjoy the services of a golf course, as required by Section 302(b)(2)(A)(iii).

"As the Agency directed by Congress to render technical assistance explaining the responsibilities of covered individuals and institutions, [see 42 U.S.C.] §12206(c), and to enforce title III in court, §12188(b), the Department's views are entitled to deference." Bragdon v. Abbott, 524 U.S. 624, 646 (1998) (citing Chevron U.S.A., Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837, 844 (1984)).

DOJ has had two instances come before it from mobility impaired golfers seeking to have golf courses provide single rider cars.

In the first case, a formal settlement agreement was entered into by DOJ and the City of Indianapolis requiring the city to provide "individual golf mobility aid devices", i.e., single rider cars, at the city's golf courses. A copy of the settlement agreement is attached.

In the second case, in an informal settlement agreement, a golf course settled a complaint by agreeing to acquire a "golf cart designed for use by a person with disabilities"

The only defense to a failure to provide an auxiliary aid is if the course operator can prove that either it would fundamentally alter the game of golf or it was an undue burden. PGA Tour v. Martin, as discussed above makes it clear that providing a golf car does not fundamentally alter the nature of the game of golf. The remaining possible defense is that the provision of a single rider would result in an undue burden.

Undue burden is defined as significant difficulty or expense. Providing a single rider does not pose a significant difficulty since there are several manufacturers and all the course has to do is order one. Nor is there significant expense. The most expensive single rider is approximately $8000. As discussed earlier, for courses with less than $1 million in revenue or 30 or fewer employees, there is a tax credit that makes the economic impact minimal. For courses with over $1million in revenues, an expenditure of $8000 can hardly be considered significant, particularly since the cost can be expensed in the year of purchase. Moreover, if a course wishes to get a return on their investment all it has to do is put the single rider in its fleet and rent it to singles.

iii. Section 302(b)(2)(A)(iv) states:
discrimination includes a failure to remove architectural barriers that are structural in nature, in existing facilitie where such removal is readily achievable.

The first issue is whether the provision of a single rider car is a removal of an architectural barrier. To answer that question, it is instructive to see how the DOJ regulations define items that remove architectural barriers. In 36 C.F.R §304, the regulations list 21 examples of items that remove architectural barriers. They include: installing hand controls. If hand controls are an example of removing an architectural barrier then certainly a single rider car is a removal of an architectural barrier.

An analogous situation is the rental car industry. Not only does the ADA require that rental vehicles have hand controls for the mobility impaired but the rental car companies also have to have vans with a wheelchair lift to transport mobility impaired customers from airport terminals to the car rental station.

The second issue is whether providing a single rider car is readily achievable. Section 301(9) states:
The term 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-
(A) the nature and cost of the action needed under this Act;
(B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility:
(C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type , and location of the facilities; and
(D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.

As discussed in Section ii above, the financial impact of providing a single rider in minimal and is not an "undue burden". The "readily achievable" standard is a "lesser" standard. Moreover, the burden of proof would be on the course operator to show that providing a single rider car is not readily achievable. Colorado Cross Disability Coalition v. Hermanson Family Limited Partnership I, ___ F.2d ___.(10th Cir. 2001).

D. Remedies Under the ADA.

A person who has been the subject of illegal discrimination under the ADA has two methods of getting relief. One is to file a lawsuit in federal court as was done in Dorsey v. American Golf Corporation. The other method is to file a complaint with DOJ and let it pursue the matter as was done in the City of Indianapolis case.

If an individual brings a case in court, there are no damages. The relief would be an order directing the defendant to comply with the ADA, to provide a single rider car in this case. If the case goes to trial, attorney's fees can be awarded. If DOJ brings a case, it can request damages of $50,000 for a first violation and $100,000 for any subsequent violation.

E. Remedies Under California Law.

Under California law, any violation of the ADA is also automatically a violation of The Unruh Civil Rights Act. "Each and every offense" results in damages of $4000 per incident plus attorney's fees. The $4000 damages per incident are the minimum damages and no proof of damage is required. Thus a golf course that denies access to a disabled person needing a single rider car is liable for $4000 damages for each person and each day that access was denied.

"Private" country clubs are also covered by California law. In Warfield v. Peninsula Golf & Country Club, 10 Cal. 4th 594 (1995), the California Supreme Court held that the Unruh Civil Rights Act applied to a private membership country club on the following facts:
On the average of once a week, nonmembers used the facility for a fee "sponsored" by a member for such events as weddings, golf outings, etc.
The club received income form fees charged for the use of its facilities and the purchase of food and beverages by nonmember "invited guests".
The club received an indirect financial benefit from having the golf and tennis pro shops open to the public.

It would be a rare "private" country club in California that would not be considered covered by the Unruh Civil Rights Act under the Peninsula Golf & Country Club decision.


Footnotes:

1 The U.S. Access Board Guidelines require golf courses to permit mobility impaired golfers to drive a golf car on the tees and greens. www.access-board.gov/recreation/final.htm. § 15.4.
2 All the data in Section II (A) is contained in The Golf 20/20 Industry Report for 2003, June 8, 2004
3 Frequent Golfer Study, National Golf Foundation
4 Frequent Golfer Study, National Golf Foundation
5 Mobility Device Use in the United States. UCSF Disability Statistics Center. www.dsc.ucsf.edu.
6 IRC § 44
7 IRC § 190
8 42 U.S.C. § 12101
9 Assistive Technology, by John M. Williams, June 21, 2000.
10 www.eeoc.gov/ada/bushspeech.html
11 42 U.S.C.§ 12182(a)
12 42 U.S.C. §12181(7)(L)
13 There may also be situations where a course that has no golf cars is in violation of the ADA if it does not offer a single rider car. However, the purpose of this memo to focus on the vast majority of courses that do offer standard golf cars to their customers.
14 Dorsey, 98 F.Supp. at 817
15 42 U.S.C. §12182(b)(2)(A)(ii)
16 PGA Tour, 531 U.S. at
17 Id. at ___
18 Id. at ___
19 42 U.S.C. §12182(b)(2)(A)(iii)
20 42 U.S.C §12102(1)(C)
21 In Bragdon, the Supreme Court drew guidance from the Department's Title III Technical Assistance Manual and several technical assistance letters. See 524 U.S. at 646.
22 DOJ Status Report, April-June 2003
23 ADA Title III Technical Assistance Manual §III-4.3600
24 42 U.S.C. §12181(9)
25 www.usdoj.gov/crt/ada/alamonat.htm
26 42 U.S.C. §12182(b)(2)(A)(iv)
27 DOJ Title III Technical Assistance Manual 4.36000 (1993)
28 42 U.S.C. §12188(a).
29 42 U.S.C. §12188(b)
30 42 U.S.C. §12188(a)(2).
31 42 U.S.C. §12188(b)(2)(C).
32 California Civil Code § 51(f)
33 California Civil Code § 52(a)
34 Koire v. Metro Car Wash, 40 Cal.3d 24 (1985); Donald v. Caf © Royale, Inc., 218 Cal. App. 3d 168 (1990), Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000)


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