# 161

III-4.2100
III-4.4200
III-6.1000 February 28, 1995

The Honorable Bob Graham

United States Senator
Post Office Box 3050
Tallahassee, Florida 32315

Dear Senator Graham:

This letter is in response to your inquiry on behalf of your

constituent, XXXXXXXXXXXXX, regarding an alleged lack of
wheelchair accessibility in the attractions at Walt Disney World
(Disney) in Orlando, Florida. Specifically, XXXXXXXX complains
that his wife, who uses a wheelchair, was prevented from enjoying
several attractions at Disney because the attractions were not
accessible to individuals who use wheelchairs. XXXXXXXX alleges
that several of these attractions had been renovated after the
effective date of the Americans with Disabilities Act (ADA), and
that some attractions that were not renovated could easily be
made accessible to individuals who use wheelchairs. Finally,
XXXXXXXX was concerned about Disney's imposition of certain
policies that limited use of some rides to individuals who can
walk.

The ADA requires public accommodations like Disney to

provide "full and equal enjoyment" of their goods and services to
individuals with disabilities. 42 U.S.C. 12182(a). Among the
law's many provisions is a carefully crafted process for the
development of physical access to places of public accommodation.
The ADA places a relatively modest burden on existing facilities,
requiring that they remove barriers to access where it is readily
achievable, or "easily accomplishable and able to be carried out
without much difficulty or expense." 42 U.S.C. 12182(2)(A)
(iv); 28 C.F.R. 36.304(a). When a place of public
accommodation performs alterations or when it undertakes new
construction, however, the law requires strict adherence to
specific standards that are intended to provide maximum physical
access for persons with disabilities. 42 U.S.C. 12183(a)(2);
28 C.F.R. 36.401 (new construction), 28 C.F.R. 36.402
(alterations), 28 C.F.R. 36.406, pt. 36, App. A (Standards for
Accessible Design). Entities performing alterations that are
more than mere cosmetic changes must ensure that any altered
areas are readily accessible to and usable by persons with
disabilities. 42 U.S.C. 12183(a)(2); 28 C.F.R. 36.402. In
addition, if the alterations involve areas of primary function,
entities must spend up to 20% of the costs of the alterations
making the path of travel to the altered areas accessible. 42
U.S.C. 12183(a)(2); 28 C.F.R. 36.403. A "primary function"
is a major activity for which the facility is intended and
includes areas such as the lobby of a bank, the dining area of a
cafeteria, and meeting rooms. 28 C.F.R 36.403(b). The "path
of travel" to an altered area is defined as an unobstructed
passageway from the entrance to the facility to the altered
areas, and includes areas such as restrooms, telephones, and
drinking fountains. 28 C.F.R. 36.403(e).

While the Standards do not specifically address some

elements of amusement park rides, other provision of the title
III regulation may require purchase or modification of equipment
in order to ensure full and equal employment of the facilities
and to provide an opportunity to participate in the services and
facilities. 28 C.F.R. ​ 36.201 and 36.202. The barrier removal
requirements would also apply.

Several of the attractions identified by XXXXXXXX are

existing, and others, allegedly, have been altered. Without a
thorough investigation into the nature of the changes that need
to be made in order to provide access to the existing rides, it
is impossible to determine whether Disney has violated the
section of the law mandating "readily achievable" barrier
removal. Similarly, the United States cannot determine whether
Disney has violated the alterations provisions, short of an
investigation of the date on which alterations were undertaken,
the nature of the alterations, and a determination of whether the
alterations, if more than cosmetic, involved areas of primary
function.

Finally, XXXXXXXX complains that his wife was not permitted

onto a ride because of Disney's conclusion that she would be
unable to evacuate the ride in the event of its breakdown.
Public accommodations are required by the law to make all
reasonable modifications in their policies, practices and
procedures that are necessary to ensure that individuals with
disabilities enjoy their goods and services. 42 U.S.C.
​ 12182(b)(2)(A)(ii); 28 C.F.R. 36.302. Entities are, however,
permitted to establish neutral "eligibility criteria" that are
necessary for the safe operation of the place of public
accommodation. 28 C.F.R. 36.301(b). Safety requirements must
be based on actual risks, and not on stereotypes or
generalizations about individuals with disabilities. 28 C.F.R.
pt. 36, App. B at 605. A determination of whether the alleged
criteria for the rides are discriminatory would require
investigation into the particular circumstances involved.

At this time, the Department has decided not to open an

investigation of XXXXXXXXXX complaint. I am enclosing a copy of
this Department's regulation implementing title III of the ADA
and the Technical Assistance Manual that was developed to assist
individuals and entities subject to the ADA to understand the
requirements of title III. I hope that these materials and the
discussion herein provide guidance to your constituent.

Sincerely,

Deval L. Patrick
Assistant Attorney General
Civil Rights Division