Disability Law Index - Public Accommodations: Mobility Devices

Regulation:

28 C.F.R. § 36.311 - Mobility Devices

(a) Use of wheelchairs and manually-powered mobility aids. A public accommodation shall permit individuals with mobility disabilities to use wheelchairs and manually-powered mobility aids, such as walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility disabilities in any areas open to pedestrian use.

(b)

(1) Use of other power-driven mobility devices. A public accommodation shall make reasonable modifications in its policies, practices, or procedures to permit the use of other power-driven mobility devices by individuals with mobility disabilities, unless the public accommodation can demonstrate that the class of other power-driven mobility devices cannot be operated in accordance with legitimate safety requirements that the public accommodation has adopted pursuant to § 36.301(b).

(2) Assessment factors. In determining whether a particular other power-driven mobility device can be allowed in a specific facility as a reasonable modification under paragraph (b)(1) of this section, a public accommodation shall consider –

(i) The type, size, weight, dimensions, and speed of the device;

(ii) The facility´s volume of pedestrian traffic (which may vary at different times of the day, week, month, or year);

(iii) The facility´s design and operational characteristics (e.g., whether its business is conducted indoors, its square footage, the density and placement of stationary devices, and the availability of storage for the device, if requested by the user);

(iv) Whether legitimate safety requirements can be established to permit the safe operation of the other power-driven mobility device in the specific facility; and

(v) Whether the use of the other power-driven mobility device creates a substantial risk of serious harm to the immediate environment or natural or cultural resources, or poses a conflict with Federal land management laws and regulations.

(c)

(1) Inquiry about disability. A public accommodation shall not ask an individual using a wheelchair or other power-driven mobility device questions about the nature and extent of the individual´s disability.

(2) Inquiry into use of other power-driven mobility device. A public accommodation may ask a person using an other power-driven mobility device to provide a credible assurance that the mobility device is required because of the person´s disability. A public accommodation that permits the use of an other power-driven mobility device by an individual with a mobility disability shall accept the presentation of a valid, State-issued disability parking placard or card, or State-issued proof of disability, as a credible assurance that the use of the other power-driven mobility device is for the individual´s mobility disability. In lieu of a valid, State-issued disability parking placard or card, or State-issued proof of disability, a public accommodation shall accept as a credible assurance a verbal representation, not contradicted by observable fact, that the other power-driven mobility device is being used for a mobility disability. A "valid" disability placard or card is one that is presented by the individual to whom it was issued and is otherwise in compliance with the State of issuance´s requirements for disability placards or cards.

28 C.F.R. § 36.104 -Definitions. (excerpt)

Wheelchair means a manually-operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of indoor or of both indoor and outdoor locomotion. This definition does not apply to Federal wilderness areas; wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).

Other power-driven mobility device means any mobility device powered by batteries, fuel, or other engines – whether or not designed primarily for use by individuals with mobility disabilities – that is used by individuals with mobility disabilities for the purpose of locomotion, including golf cars, electronic personal assistance mobility devices (EPAMDs), such as the Segway® PT, or any mobility device designed to operate in areas without defined pedestrian routes, but that is not a wheelchair within the meaning of this section. This definition does not apply to Federal wilderness areas; wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).

Case Law:

Baughman v. Walt Disney World Company, 685 F.3d 1131 (9th Cir. 2012)

  • Plaintiff sued Disney for not allowing her to use her Segway in Disneyland. The plaintiff demonstrated that she had difficulty standing up from a seated position where the Segway allowed her to remain standing which makes it easier for her to visit Disneyland's attractions and concessions. The Segway also allows her to be at eye-level with other guests and staff, rather than having everyone look down at her.
  • New Department of Justice regulations discusses the use of Segways concluding that public accommodations will have to admit them in most circumstances. The Ninth Circuit did not hold that Disney must permit Segways at its theme parks. It might be able to exclude them if it can prove that Segways can't be operated safely in its parks.

Ault v. Walt Disney World Company, (M.D. Fla. April 4, 2011)

  • Court approved a class action settlement in a case where the plaintiff's challenged Disney's prohibition of Segways.
  • "The DOJ’s revised regulations conflict with the plain language of Title III, which requires that a requested modification be necessary for a disabled individual to be afforded goods or services. Therefore, to the extent the revised regulation is inconsistent with the statutory text of Title III, the Court declines to accept it."