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Janis Kent, Architect, CASp © April, 2025 One of the items under the ADA which people tend to overlook is Commercial Facilities. When referenced under the ADA, generally Title III is referred to as Public Accommodations and Commercial Facilities, which then just gets shortened to places of Public Accommodation. But there are important differences between the two, particularly for barrier removal and maintenance requirements. So the first item is, just what does the ADA mean by a commercial facility? It states that they are a facility whose operations affect commerce and that are for non-residential use by a private entity. It does not include any facilities covered or exempted under FHA; nor aircraft; nor railroad locomotives, commuter or intercity passenger rail cars (whether sleeping or dining) etc. Then in another section it is further defined as a privately owned, non-residential facility such as factories, warehouses, and office buildings. That helps a bit, but office buildings? Under ADA Subpart B (sections 36.201 to 36.212), it refers to general requirements, including prohibitions restricting public accommodations from discriminating against those with a disability from equal enjoyment of goods, services, facilities, privileges, etc. This is applicable to the owner and/or lessee who operates the place of Public Accommodation, although this can be allocated by lease agreement. It states that someone with a disability may not be denied participation and that participation should be in integrated settings. And accessible features are to be maintained. Under Subpart C, (sections 36.301 to 36.310) it refers to specific requirements for policies, practices, and procedures, auxiliary aids and services, and removal of barriers, including seating in assembly areas, and other alternatives to barrier removal. Subpart D (sections 36.401 to 36.406) is applicable to both a place of Public Accommodation and to a Commercial Facility and discusses new construction and alterations. 28 CFR Part 36 delineates which subpart applies to a place of Public Accommodation vs a Commercial Facility. § 36.102 Application (b) Public accommodations. The requirements of this part applicable to public accommodations are set forth in subparts B, C, and D of this part… (c) Commercial facilities. The requirements of this part applicable to commercial facilities are set forth in subpart D of this part. So when we look at these Subparts, B, C, and D, the only portion applicable to a Commercial facility is Subpart D, whereas all of these subparts are applicable to a place of Public Accommodation. Subpart D—New Construction and Alterations Subpart D implements section 303 of the Act, which requires that newly constructed or altered places of public accommodation or commercial facilities be readily accessible to and usable by individuals with disabilities. This requirement contemplates a high degree of convenient access. It is intended to ensure that patrons and employees of places of public accommodation and employees of commercial facilities are able to get to, enter, and use the facility. The Act does not require new construction or alterations; it simply requires that, when a public accommodation or other private entity undertakes the construction or alteration of a facility subject to the Act, the newly constructed or altered facility must be made accessible. This subpart establishes the requirements for new construction and alterations. To further clarify what is a place of public accommodation, the following 12 facility types are as broadly defined under § 36.104 as a place of Public Accommodation which means a facility operated by a private entity whose operations affect commerce and fall within at least one of the following categories – If it does not fall within the above broad list then it most likely is a Commercial Facility. This means that as a Commercial Facility, it does not have any barrier removal requirements, nor does it require ongoing maintenance of accessible features unless local codes require otherwise. Now portions of a facility can be a place of Public Accommodation where barrier removal is an obligation, and portions can be considered a Commercial Facility where there are no barrier removal, maintenance, or policies, practices, and procedures requirements. For instance, if there is a tour of a commercial facility generally not open to the public, such as a factory or a movie production set, then only the route that the tour physically follows is considered a place of public accommodation, not the area the tour views. But if the tour is not open to the public but rather to selected business colleagues, partners, customers, or consultants, then DOJ does not consider it a place of public accommodation. And we could extend this to an office building being careful of the tenant space types that only have employees vs others where the public might come, such as a service establishment under category 6. above, of an office of an accountant, lawyer, architect, or an insurance office which all are defined as a place of public accommodation. And be aware that category 11. above is for private schools, not public, which are a TII category. And one other final item in California and perhaps other states, there is a requirement for ongoing maintenance of accessible features regardless of whether it is a Commercial facility or not. And also be aware, that employee only areas do not have readily achievable barrier removal, but employees at places with 15 or more employees are protected under Title I of the ADA. Be aware that your local City or County may have additional requirements that are more restrictive than the State or Federal requirements. Also, this article is an interpretation and opinion of the writer. It is meant as a summary – current original regulations should always be reviewed when making any decisions. © Janis Kent, FAIA, Architect, CASp 2025Commercial Facilities vs Public Accommodations & the ADA – What are they & why do I care?
