cas

By Zoe Vermeulen

In recent years, businesses of all types have experienced an uptick in lawsuits filed under Title III of the Americans with Disabilities Act (“ADA”), which prohibits discrimination against disabled persons regarding access to and enjoyment of places of public accommodation. With a ruling from the Western District of Louisiana in August 2015, the reach of Title III has now been extended to casino vessels.

In Schlesinger v. Belle of Orleans LLC, the plaintiff, Andrew Schlesinger, filed suit against the owner of the Amelia Belle casino alleging violations of Title III of the ADA. The Amelia Belle is a Class H passenger vessel and riverboat gaming vessel located in Amelia, Louisiana. The casino has a custom parking facility and sidewalks located on dry land adjacent to the vessel. The inside of the Amelia Belle contains ATMs, vending machines, cashier counters, four restrooms, video poker machines, a sports bar, a buffet restaurant, and a hotdog stand.

Mr. Schlesinger is afflicted with spina bifida and is wheelchair-bound. He claims that he visited the Amelia Belle casino but experienced serious difficulty accessing the goods and utilizing the services at the casino due to architectural barriers that he claimed were violations of the ADA.

Title III of the ADA and its implementing regulations, which include Accessibility Guidelines, contain various design and construction standards to make public accommodations accessible to disabled persons. Title III also requires the removal of existing architectural and structural barriers that prevent access to public accommodations where such removal is readily achievable. The ADA’s Accessibility Guidelines are divided in to multiple subparts. Subpart C of the Guidelines governs the removal of barriers in existing facilities, and Subpart D contains standards applicable to new construction and alterations.

The language of the ADA itself is express that a restaurant, bar, or other establishment serving food or drink is a place of public accommodation and is subject to Title III of the ADA. But, the Department of Justice (“DOJ”), which promulgated the ADA’s Accessibility Guidelines, has taken the position that the standards specifically related to new construction and alterations) do not currently apply to vessels. The Amelia Belle used the DOJ’s position to argue that the entirety of Title III is inapplicable to vessels. This left the Court with the question of whether an existing vessel that contains a restaurant and a bar was subject to Title III of the ADA.

The court held that while the new construction and alteration standards in Subpart D of the Guidelines are not applicable to vessels, the architectural removal standards from Subpart C of the Guidelines do apply existing vessels.[1] Accordingly, Belle of Orleans provides a clear path for disabled persons to challenge alleged accessibility barriers on existing vessels if such vessels are or contain places of public accommodation. If the vessel does not contain any public accommodation, such as a restaurant, bar, hotel, theater, etc., Title III of the ADA will not be applicable.

[1] This is in keeping with a ruling from the U.S. Supreme Court that cruise ships fall within the definition of a “public accommodation.”