Golf Cars as Other Powered Mobility Devices (“OPMDs”)

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Golf Cars as Other Powered Mobility Devices (“OPMDs”)

Golf Cars as Other Powered Mobility Devices (“OPMDs”)1

Early in 2017, the City Council of Yorkville, Illinois, ruled a disabled person could not use a golf cart to drive on city roadways, such as parkways and alleyways, as well as sidewalks. Subsequently, the disabled person filed a formal ADA discrimination complaint with the U.S. Department of Justice. City staff was also contacted by an advocacy organization for individuals with mobility disabilities.  This organization presented the City with information from the federal government that golf carts and other large motor driven vehicles may qualify as a mobility device under the ADA.2

In September 2017, the Yorkville City Council adopted an ordinance stating ADA exceptions to the previously adopted rule would apply.  For individuals with a qualified disability under ADA, use of a golf cart or other power driven vehicle would be allowed on sidewalks and City properties.3

While the Yorkville ordinance is not what lawyers are wont to call legal precedent, (it binds no one other than Yorkville and its citizens), it should be of significant interest to those municipal and local governments which furnish multimodal paths, trails, parks and similar areas. That is, if indeed the ADA requires accommodation of disabled persons using OPMDs by public bodies, then they should be mindful to permit this use if safety conditions warrant.

One of the safety conditions that comes to mind is the mixing of pedestrian and motorized OPMD vehicles. Unless rules are adopted requiring the OPMD to have a horn or warning device when about to overtake a pedestrian going in the same direction, the pedestrian may be in danger of being hit by the OPMD. Otherwise, it is submitted that mixing pedestrian and vehicular traffic is inherently unwise.

OPDMDs are defined in ADA rules as “any mobility device powered by batteries, fuel, or other engines that are used by individuals with mobility disabilities for the purpose of locomotion, including golf cars, electronic personal assistance mobility devices, such as the Segway® PT, or any mobility device designed to operate in areas without defined pedestrian routes, but that is not a wheelchair”.4 When an OPDMD is being used by a person with a mobility disability, different rules apply under the ADA than when it is being used by a person without a disability.5

A facility may be required to allow a type of device that is generally prohibited when being used by someone without a disability when it is being used by a person who needs it because of a mobility disability. For example, if golf cars are generally prohibited in a park, the park may be required to allow a golf car when it is being used because of a person’s mobility disability, unless there is a legitimate safety reason that it cannot be accommodated.6

ADA covered entities are required to allow people with disabilities who use any OPDMD to enter the premises unless a particular type of device cannot be accommodated because of legitimate safety requirements. Such safety requirements must be based on actual risks, not on speculation or stereotypes about a particular type of device or how it might be operated by people with disabilities using them. However, it should be noted that many OPMDs have usage requirements and limitations that may preclude their use by persons with certain disabilities. “Covered entities” include both public entities and private businesses or recreational facilities, e.g., golf courses, classified as public accommodations.

The Department of Justice, (“DOJ”), has adopted rules respecting the use of mobility assistance devices by persons with mobility disabilities.7 The DOJ rules ask “Can a person who has a mobility disability, use certain types of devices in specific places without resulting in a fundamental change to safety, the natural resource, etc. at that location?”8

The rules apply to all state and local government lands under ADA Title II and privately or commercially managed lands that are open to the public, i.e., deemed public accommodations under ADA Title III. The OPDMD requirements are the same for both ownership categories.9 They do not apply to distinctly private clubs that have carefully preserved their private status under the ADA exemption for them.10 The “take away” for private golf courses is they should be most careful to preserve their private status if they desire to be exempt from the DOJ rules. This generally means a private club or golf course should conform to the five factors enumerated in paragraph III-1.6000 of footnote 10 and limit access to their facilities to bona fide members and their accompanied guests.

Curiously, nowhere in the federal code of regulations do we find a specific definition of a “mobility disability”.11 The lack of a definition leads to questions such does a mobility disability mean the person cannot walk at all or no more than a few feet without an assistive device? Or, can it mean, e.g., if a path, trail or golf course requires traversing more than a hundred yards or a mile or so and the person cannot walk without an assistive device for that distance, he/she is under a mobility disability? At what point is a person considered under a substantial mobility disability?

If I am suffering from lumbar spinal stenosis and cannot walk without external support more than a 100 yards at a time without suffering significant pain, does this mean a public golf course cannot prohibit the use of golf cars or other OPMD unless course conditions are such that the use of an OPMD would cause damage to the course?  May the public golf course set the golf car signs indicating the player must exit the fairway more than a few yards from the green if the player is incapable of walking without pain more than the distance from the exit sign to the green complex?

Many golf courses provide “handicap” flags for golf cars being operated by or transporting golfers with medically certificated disabilities. The criteria for obtaining these certificates vary from course to course. However, the DOJ Rules cited above do give specific instruction concerning what procedures should be used by the golf course owner in addressing persons requesting accommodation.

One issue attracting our interest is the number of pubic trails and multi-modal pathways which limit passage to pedestrians, bicycles and specified mobility assistance devices, e.g., wheel chairs, but without presently allowing all OPMD, such as golf cars. Obviously under the DOJ rules if a mobility disabled person desires to use a golf car on the trail or pathway, the owner must allow for this use. But if the owner’s rules prohibit the use of any motorized vehicles how is this prohibition consistent with the use of a golf car by a mobility disabled person? And suppose the trail or pathway is not wide enough to accommodate the golf car? Must the owner widen the trail or pathway to accommodate a golf car? The DOJ rules list a number of assessment factors that come into play in making this kind of decision.

Back to our question what is a “mobility disability”? If a trail is a 3 mile loop trail and I am unable to walk that far because of age or health infirmities, despite the fact I can walk unassisted for several hundred yards, does the trail owner have to allow me to use an OPMD or golf car to experience the trail?

One of our favorite trail venues is in the North Carolina mountains. The trails mainly consist of what were once logging trails and preserved as unpaved but wide access paths. The grades are steep but less so than many golf course paths. I enjoy going on these trails but don’t have the stamina to traverse them back up hill for several miles despite the fact I enjoy a brisk two mile walk most days on city streets. Should I be allowed to use my golf car to explore these trails beyond my present walking ability?

It is noteworthy the DOJ rules do not address use of OPMD on public streets. Notwithstanding, some localities provide for bicycle lanes, most of which are too narrow for some OPMDs such as golf cars. A question arises whether if bicycle lanes are provided shouldn’t the locality provide for OPMD access in a wider lane for their passage? If a wider lane is provided, then might not it be allowable for anyone using a golf car to traverse it?

In 2013, the Architectural and Transportation Barriers Compliance Board (Access Board), issued an supplementary advance notice of proposed rulemaking (ANPRM)12 announcing its intent to develop accessibility guidelines for shared used paths. Shared use paths are defined by the Access Board as multi-use paths designed primarily for use by bicyclists and pedestrians, including pedestrians with disabilities, for transportation and recreation purposes. Shared use paths are physically separated from motor vehicle traffic by an open space or barrier, and are either within the highway right-of-way or within an independent right-of-way. The Access Board noted in the ANPRM it is considering including accessibility guidelines for shared use paths in the accessibility guidelines that it is developing for sidewalks and other pedestrian facilities in the public right-of-way.

However, since 2013, no further action has been taken respecting this ANPRM. The Access Board is projecting that the minimum standards as affecting newly designed and constructed public streets and sidewalks that are governed by the ADA and several other statutes will be finalized by the middle of 2017.13

Existing public rights-of-way would also be subject to the new rules if they are altered. Alterations are “a change to a facility in the public right-of-way that affects or could affect pedestrian access, circulation, or use.” For example, resurfacing and restoration work are considered alterations for the purposes of the proposed rules.

Other existing ADA rules respecting golf car accessible routes require they be continuous, unobstructed paths connecting all accessible elements and spaces of a building or facility on golf courses.14 The accessible route must comply with ADAAG provisions for location, width (minimum of 36 inches, passing space, head room, surface, slope (maximum of 1:12 or 8.33%), changes in level, doors, egress, and areas of rescue assistance, unless modified by specific provisions outlined in the guide.15

We couldn’t help but think of the narrow (less than 36 inches) bicycle lanes we have observed in some municipalities which do not have passing space. If the ADA Access Board guide is applied to public street access for golf cars and other OPMDs, what does this portend for localities that contemplate providing for bicycle lanes but not for OPMDs which require a larger footprint with passing space provided?

In summary, depending upon the criteria employed, we conclude most of us are to a degree, substantially mobility disabled. Because of our age, physical condition or even motivation, many of us are incapable of walking lengthy distances without causing injury or potential injury. Is the lack of a definition of substantial “mobility disability” a question that should be answered? It may be the ADA and the DOJ have created some mischief where none was intended. We are reminded of the adage “beware of the law of unintended consequences”.  Once Pandora’s Box is opened, the evil spirits escape.

1 This author of this article is Fred L. Somers, Jr., Esq., an Atlanta area attorney. Fred is General Counsel and Secretary of International Light Transportation Vehicles Association, Inc., (“ILTVA”), a 501(c)(6) trade association and also serves as counsel and advisor to various private clubs. The views expressed herein do not necessarily reflect the views of ILTVA or its members.

2 See 08/29/18 administrative memo to Public Safety Committee at page 11 of http://www.yorkville.il.us/ArchiveCenter/ViewFile/Item/2292

3 Id.

4 28 CFR 35.104 Definitions. See https://www.gpo.gov/fdsys/pkg/CFR-2017-title28-vol1/pdf/CFR-2017-title28-vol1-sec35-104.pdf

5 https://www.ada.gov/opdmd.htm

6 Id.

7 https://www.ada.gov/regs2010/titleII_2010/titleII_2010_withbold.htm

8 Remarks of  Janet Zeller, U.S. Forest Service National Accessibility Program Manager; see further http://www.dcr.virginia.gov/recreational-planning/document/doj-ada-rule.pdf

9 Id.

10 https://www.ada.gov/taman3.html ¶ III-1.6000.

11 Federal laws define a person with a disability as “Any person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment.” Walking is included as a major life activity. The question presented might also be phrased as what degree of impairment is considered “substantial” enough to invoke a right of accommodation? Various types of mobility impairment are collected at  https://www.disabled-world.com/disability/types/mobility/#define. It is estimated therein the number of adults unable (or finding it very difficult) to walk a quarter mile is 17.2 million.

12 https://www.access-board.gov/guidelines-and-standards/streets-sidewalks/shared-use-paths/supplemental-notice

13 See https://www.burnhamnationwide.com/final-review-blog/accessibility-guidelines-for-pedestrian-facilities-in-the-public-right-of-way

14 See https://www.access-board.gov/attachments/article/592/golf.pdf

15 Id.