Amends the definition of place of public accommodation, resort or amusement for the purposes of the human rights law.
TITLE OF BILL: An act to amend the executive law, in relation to the definition of "place of public accommodation, resort or amusement" for the purposes of the human rights law
PURPOSE: To clarify the definition of "place of public accommodation, resort or amusement" in the Human Rights Law.
SUMMARY OF PROVISIONS: Section one of this bill amends subdivision 9 of section 292 of the executive law to state that the term "place of public accommodation, resort or amusement" includes places regardless of whether the owner or operator of such place is a state or local government entity or a private individual or entity. This section adds public rooms and any public areas of any building or structure to the list places included in the definition. It also removes public libraries from the list of places that are not included in the definition.
Section two amends paragraphs (c) and (d) of subdivision (2) of section 296 of the executive law to clarify that it is an unlawful discriminatory practice for local or state government entities to refuse to remove architectural barriers where such removal does not constitute an undue burden, which is the standard set forth in the Americans with Disabilities Act (ADA). Nothing in this section would require a public entity to necessarily make its existing facilities accessible and usable by individuals with disabilities nor take any action that would threaten or destroy the historical significance of a historic property. Section two also clarifies that for the purposes of section 296 "person" includes any state or local government entity.
JUSTIFICATION: Title II of the ADA prohibits discrimination on the basis of disability by government entities, and section 296 of the Executive Law prohibits discrimination in places of public accommodation. This legislation clarifies that places are included in the definition of "place of public accommodation" in section 292, regardless of whether it is owned or operated by a state or local government or a private individual or entity, It is important to codify this in the Executive Law, and to make it explicit that government owned or operated places are included in the definition. This will make it clear to individuals with disabilities that it is unlawful for a state or local government entity to discriminate against them.
The amendments to section 296 are necessary to avoid potential confusion associated with adding government entities to the definition of public accommodation. Specifically, pursuant to the ADA, the standard for refusal to remove architectural barriers is a higher "undue burden" standard for government actors, than the "readily achievable" standard for non-governmental actors.
Accordingly, this legislation adds the correct standard for government actors.
LEGISLATIVE HISTORY: 2011-2012:S. 7139-A Investigations and Government Operations/A. 9848-A Passed Assembly
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This bill shall take effect on the one hundred twentieth day after it shall have become law.
STATE OF NEW YORK ________________________________________________________________________ 4093 2013-2014 Regular Sessions IN SENATE March 8, 2013 ___________Introduced by Sen. MARCELLINO -- read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Government Operations AN ACT to amend the executive law, in relation to the definition of "place of public accommodation, resort or amusement" for the purposes of the human rights law THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 9 of section 292 of the executive law, as amended by chapter 262 of the laws of 1994, is amended to read as follows: 9. The term "place of public accommodation, resort or amusement" shall include, REGARDLESS OF WHETHER THE OWNER OR OPERATOR OF SUCH PLACE IS A STATE OR LOCAL GOVERNMENT ENTITY OR A PRIVATE INDIVIDUAL OR ENTITY, except as hereinafter specified, all places included in the meaning of such terms as: inns, taverns, road houses, hotels, motels, whether conducted for the entertainment of transient guests or for the accommo- dation of those seeking health, recreation or rest, or restaurants, or eating houses, or any place where food is sold for consumption on the premises; buffets, saloons, barrooms, or any store, park or enclosure where spirituous or malt liquors are sold; ice cream parlors, confec- tionaries, soda fountains, and all stores where ice cream, ice and fruit preparations or their derivatives, or where beverages of any kind are retailed for consumption on the premises; wholesale and retail stores and establishments dealing with goods or services of any kind, dispen- saries, clinics, hospitals, bath-houses, swimming pools, laundries and all other cleaning establishments, barber shops, beauty parlors, thea- tres, motion picture houses, airdromes, roof gardens, music halls, race courses, skating rinks, amusement and recreation parks, trailer camps, resort camps, fairs, bowling alleys, golf courses, gymnasiums, shooting galleries, billiard and pool parlors; garages, all public conveyancesEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05065-01-3 S. 4093 2
operated on land or water or in the air, as well as the stations and terminals thereof; travel or tour advisory services, agencies or bureaus; public halls
[and], PUBLIC ROOMS, public elevators, AND ANY PUBLIC AREAS of [buildings and structures occupied by two or more tenants, or by the owner and one or more tenants]ANY BUILDING OR STRUC- TURE. Such term shall not include [public libraries,]kindergartens, primary and secondary schools, high schools, academies, colleges and universities, extension courses, and all educational institutions under the supervision of the regents of the state of New York; any such [public library,]kindergarten, primary and secondary school, academy, college, university, professional school, extension course or other education facility, supported in whole or in part by public funds or by contributions solicited from the general public; or any institution, club or place of accommodation which proves that it is in its nature distinctly private. In no event shall an institution, club or place of accommodation be considered in its nature distinctly private if it has more than one hundred members, provides regular meal service and regu- larly receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of a nonmember for the furtherance of trade or business. An institution, club, or place of accommodation which is not deemed distinctly private pursuant to this subdivision may nevertheless apply such selective criteria as it chooses in the use of its facilities, in evaluating applicants for membership and in the conduct of its activities, so long as such selective criteria do not constitute discriminatory practices under this article or any other provision of law. For the purposes of this section, a corporation incorporated under the benevolent orders law or described in the benevolent orders law but formed under any other law of this state or a religious corporation incorporated under the educa- tion law or the religious corporations law shall be deemed to be in its nature distinctly private. No institution, club, organization or place of accommodation which sponsors or conducts any amateur athletic contest or sparring exhibition and advertises or bills such contest or exhibition as a New York state championship contest or uses the words "New York state" in its announce- ments shall be deemed a private exhibition within the meaning of this section. S 2. Paragraphs (c) and (d) of subdivision 2 of section 296 of the executive law, as added by chapter 394 of the laws of 2007, are amended to read as follows: (c) For the purposes of paragraph (a) of this subdivision, "discrimi- natory practice" includes: (i) a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facili- ties, privileges, advantages or accommodations to individuals with disa- bilities, unless such person can demonstrate that making such modifica- tions would fundamentally alter the nature of such facilities, privileges, advantages or accommodations; (ii) a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden; (iii) a refusal to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, andS. 4093 3
transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals (not including barriers that can only be removed through the retrofitting of vehicles or rail passenger cars by the installation of a hydraulic or other lift), where such removal is readily achievable;
[and](iv) WHERE SUCH PERSON IS A LOCAL OR STATE GOVERNMENT ENTITY, A REFUSAL TO REMOVE ARCHITECTURAL BARRIERS, AND COMMUNICATION BARRIERS THAT ARE STRUCTURAL IN NATURE, IN EXISTING FACILITIES, AND TRANSPORTA- TION BARRIERS IN EXISTING VEHICLES AND RAIL PASSENGER CARS USED BY AN ESTABLISHMENT FOR TRANSPORTING INDIVIDUALS (NOT INCLUDING BARRIERS THAT CAN ONLY BE REMOVED THROUGH THE RETROFITTING OF VEHICLES OR RAIL PASSEN- GER CARS BY THE INSTALLATION OF A HYDRAULIC OR OTHER LIFT), WHERE SUCH REMOVAL DOES NOT CONSTITUTE AN UNDUE BURDEN; EXCEPT AS SET FORTH IN PARAGRAPH (E) OF THIS SUBDIVISION; NOTHING IN THIS SECTION WOULD REQUIRE A PUBLIC ENTITY TO: NECESSARILY MAKE EACH OF ITS EXISTING FACILITIES ACCESSIBLE TO AND USABLE BY INDIVIDUALS WITH DISABILITIES; TAKE ANY ACTION THAT WOULD THREATEN OR DESTROY THE HISTORICAL SIGNIFICANCE OF AN HISTORIC PROPERTY; OR TO MAKE STRUCTURAL CHANGES IN EXISTING FACILITIES WHERE OTHER METHODS ARE EFFECTIVE IN ACHIEVING COMPLIANCE WITH THIS SECTION; (V) where such person can demonstrate that the removal of a barrier under subparagraph (iii) of this paragraph is not readily achievable, a failure to make such facilities, privileges, advantages or accommo- dations available through alternative methods if such methods are readi- ly achievable. (d) For the purposes of this subdivision: (i) "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 subdivision; (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 place of public accommo- dation, resort or amusement; the overall size of the business of such a place with respect to the number of its employees; the number, type and location of its facilities; and (D) the type of operation or operations of the place of public accom- modation, resort or amusement, including the composition, structure and functions of the workforce of such place; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to such place. (ii) "Auxiliary aids and services" include: (A) qualified interpreters or other effective methods of making aural- ly delivered materials available to individuals with hearing impair- ments; (B) qualified readers, taped texts or other effective methods of making visually delivered materials available to individuals with visual impairments; (C) acquisition or modification of equipment or devices; and (D) other similar services and actions. (iii) "Undue burden" means significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered shall include: (A) The nature and cost of the action needed under this article;S. 4093 4
(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 neces- sary 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 any parent corporation or entity; (D) 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 (E) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and func- tions of the workforce of the parent corporation or entity. S 3. This act shall take effect on the one hundred twentieth day after it shall have become a law.