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Disability Defined. The Davis-Stirling Act defines disabled as: blind, visually handicapped, deaf, or physically disabled. (Civ. Code § 4760) Federal statutes have a broader definition to mean a physical or mental impairment that substantially limits one or more major life activities but does not include current, illegal use of or addiction to a controlled substances. "Major Life Activities" means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. (24 CFR § 100.201.) The courts look to whether someone's condition substantially limits a major life activity in its corrected condition. Therefore, someone who is legally blind without glasses is not disabled if they are are fitted with glasses. There are a number of disability discrimination laws on the federal and state level. Not all of them apply to homeowners associations. Following is a list of disability anti-discrimination laws:

1.  Americans with Disabilities Act (ADA). The Americans with Disabilities Act (ADA), 42 USC §§ 3601-3631, protects families and persons with defined disabilities, similar to protections based on race, color, sex, national origin, age, and religion. It addresses discrimination in the areas of employment (Title I), public services (Title II), public accommodations and commercial facilities (Title III).Federal laws that generally do not apply to homeowner associations. Independent Housing Services of San Francisco v. Fillmore Center Associates 840 F.Supp. 1328. However, if an association were to open its facilities to the public, then ADA regulations would apply. The ADA's public accommodations provision (Title III) does not apply to homeowner associations unless its facilities are open to the public. Following are examples:

The [ADA] applies to "public accommodations." This may include facilities that are part of a common interest development, such as a sales or rental office receiving public traffic, or commercial facilities that are part of a residential project. A meeting room leased to the public for a fee is subject to the act, but not a room used only by the association members. If a community association or condominium owns, operates, or leases a swimming pool, tennis court, or other recreational facility that is open to members of the general public, then, with respect to the operation of the recreational facility, the community association or condominium would be a place of public accommodation governed by Title III of the ADA. A recreational facility that is open to members of the public (rather than being reserved exclusively for the use of association members and their families and guests) is probably a place of public accommodation. Other places of public accommodation that are sometimes owned, operated, or leased by associations include: Day care center; Senior citizen centers; Refreshment stands; and Meeting rooms that are occasionally rented to business or civic groups. [Carolyn v. Orange Park Community Assn. (2009) 177 Cal.App.4th 1090, 1104 (internal cites deleted)]

Accessible to the Public. Common area facilities, such as equestrian trails, do not qualify as public accommodations simply because they are accessible to the public. Private facilities do not become public simply because the general public is not actively excluded from them. Even so, associations should post signs and create barriers to the public wherever appropriate.

Private Club. Woodland Golf Club is a private club. Lobel was disabled and could not walk without crutches. He played golf with the aid of a special cart that lifts and swivels him toward the ball. Lobel is not a member of the Woodland Golf Club but is a frequent guest. The Club banned his cart from the greens because it caused expensive damage. Lobel sued under the Americans with Disabilities Act. The court ruled against Lobel because ADA requirements do not apply to private clubs. (Lobel v. Woodland Golf Club of Auburndale)

Equestrian Trails. The Orange Park Community Association (OPCA) had a common area trail system that was accessible to residents and non-residents alike. For safety reasons, the association installed barriers at the trail's entry points to prevent vehicle access. A non-resident disabled person wanted to use a horse drawn carriage on the trails and sued the association under the Disabled Persons Act, Unruh Civil Rights Act, and the Americans with Disabilities Act.

Stated with precision, the question presented is whether recreational common areas within a common interest development are public accommodations under the following circumstances, which are undisputed in the record before us: (1) the recreational area at issue is a fenced trail with various entry points spread over OPCA's common area; (2) the entry points include architectural barriers to access by vehicles; (3) the trails are linked to a larger web of privately owned and publicly owned trails in Orange County; (4) the OPCA trails are accessible to the general public, in that OPCA follows a custom of not precluding members of the general public from utilizing the OPCA trails; and (5) OPCA does not charge fees to members of the general public for utilizing its trails or otherwise attempt to commercially exploit the trails. (Carolyn v. Orange Park Community Association (2009) 177 Cal.App.4th 1090, 1099.)

To be brought within the ambit of section 19955 a facility must be public. . . . [T]he recreation building just does not have the characteristics and incidents of being public that section 19955 not only contemplates but specifically requires. Undoubtedly [a recreation building] is open to a more general class than the residents of the park, for surely it is available to their families and invited guests. Use by that expanded group of persons in our view, however, does not reach the use 'by the general public' spoken of in section 19955. There are still meaningful restrictions on who may use the facilities, which considerably narrows their [availability] to the general public... (Id. at 1103.)

...we conclude OPCA's trails are not public accommodations under either the ADA or California law. We agree with the premise that recreational common areas within common interest developments can be classified as public accommodations in appropriate circumstances. But we think it clear OPCA's trails would not be a public accommodation if OPCA actively excluded the general public from using the trails. Moreover, we do not think OPCA's private trails transform into public accommodations merely because OPCA does not actively exclude members of the public from using the trails. (Id. at 1104.)

There is no evidence in the record suggesting OPCA's trails were built for anyone other than its own members. There is no evidence in the record suggesting OPCA encourages public use of its trails, through advertising or otherwise. Nor is there evidence in the record suggesting OPCA charges fees to members of the public for using the trails or benefits in other ways from the public's use of the trails. The OPCA trails are an "amenity" provided to OPCA's members in exchange for their membership and association dues, not a public accommodation. OPCA "neither contemplates nor needs accessibility or continuous use [of the trails] by the general public for its sustenance." (Id. at 1105.)

The court concluded the association's trails were not public trails just because the association did not actively exclude members of the public.

Voluntary Compliance. Whenever possible, associations should voluntarily bring their facilities into compliance. This includes the association's fitness center, swimming pool, clubhouse, elevators, etc. It benefits our aging population of owners and, in the long run, is less expensive than litigating over such issues.

2.  Federal Fair Housing Act (FFHA), 42 U.S.C. § 3601 et seq. Applies to HOAs and requires reasonable accommodations in rules and policies to allow the disabled to use and enjoy their dwellings. Reasonableness is determined by weighing the benefit of the accommodation against the burden on the association. The requesting person bears the cost associated with the disability accommodation. Claims under FFHA must be made within two years of the incident of alleged discrimination. (Telesca v. The Village of Kings Creek Condominium Association, Inc., No. 09-13910, U.S. App. Ct., 11th Cir., Aug. 2, 2010.)

3.  Fair Employment and Housing Act (FEHA), Government Code §§12900-12996. FEHA is the California equivalent of the FFHA. FEHA applies to homeowners associations and requires reasonable modification of an association's rules and policies to allow a disabled person equal opportunity to use and enjoy the premises. It is administered by California's Civil Rights Department (formerly the Department of Fair Employment and Housing).

4.  Unruh Civil Rights Act (UCRA), California Civil Code § 51. The UCRA applies to homeowners associations (O'Connor v. Village Green). However, associations are not required to bear the cost of accommodating disability modification requests.

5.  Davis-Stirling ActCivil Code §§ 4000-6150. California law applies to homeowners associations. It allows owners to make alterations to their units and the common areas at their own expense to accommodate their disabilities.

Recommendation: Boards should immediately consult legal counsel whenever there is a request for reasonable accommodation or an allegation that the association is in violation of anti-discrimination laws.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

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