CHICAGO -- Vending operators now must comply with changes to the regulations mandated by the Americans with Disabilities Act, but many are not sure what this compliance requires. The new rules went into effect on March 15, and the National Automatic Merchandising Association organized a webinar with a U.S. Department of Justice expert to help clarify what the rules mean to the industry.
Barbara Elkin, a legal advisor for the DOJ, explained that many of the standards in the new 2010 rules, applicable to vending machines, are unchanged from the original regulations drafted under the Americans with Disabilities Act of 1990. There are some consequential changes in the final revisions to the regulations published by the DOJ on Sept. 15, 2010, which took effect on March 15, 2011, with compliance required 12 months thereafter.
Putting industry members into the big picture, Elkin explained that the 1990 ADA extends civil rights protections to persons with disabilities similar to those provided based on race, color, sex, national origin and religion. The rules provide for equal opportunity for persons with disabilities in public accommodations, employment, transportation, state and local government services and telecommunications.
The entities that must comply with the rules, defined as "Title II," include state and local government programs as well as services provided by publicly funded schools, colleges and hospitals and government agencies. But compliance also is required of private, "Title III" entities, defined as those that own, lease or operate facilities that serve the public. Examples of such public accommodations include restaurants, retail stores, hotels, movie theaters, private schools, convention centers and recreation facilities.
Elkin pointed out that vending machine manufacturers are not directly covered by the ADA, because they are not state or local government services or public accommodations. "If the machine is not compliant, the manufacturer is not liable," she stated. However, ADA-covered facilities that offer vending machine services must ensure that those services are accessible to persons with disabilities. Thus, vending operators serving these sites are likely to be required by clients to ensure their services are accessible, when the client is required to comply with the rules.
In some circumstances, compliance by Title II entities will require structural changes to existing facilities. This would include modifications that make the vending machine services accessible, as accessibility is defined by the rules.
"Program access obligation runs to the Title II entity, not the vending machine manufacturer," Elkin repeated.
For Title III entities, the ADA requires that public accommodations remove architectural barriers in existing facilities when such modification is "readily achievable," which is defined as "easily 'accomplishable' without much difficulty or expense."
Modification to a facility is considered not "readily achievable" if it requires extensive restructuring, or substantial expense. Such a determination is made on a case-by-case basis.
Elkin emphasized that barrier removal obligation is the responsibility of the public accommodation -- again, not the vending machine manufacturer.
NEW REACH REQUIREMENTS
Among the biggest changes to the rules that can affect vending are the reach requirements. The 1991 ADA rules require a forward reach range of 48" maximum and 15" minimum. When the customer approaches the machine from the side, those rules specify a 54" maximum and 9" minimum reach range.
The 1991 ADA standards also require that the path in front of the machine have enough room for a wheelchair to approach the machine and turn around, with a minimum of 30" in front of the patron and 48" clearance back from the machine. Additionally, the ground space around the machine must be "stable, firm and slip-resistant."
The 2010 standards maintain most of these specifications, but revise the side reach range -- in a situation where clear floor or ground space allows a parallel approach to an "element" -- to 48" maximum high reach and 15" minimum low reach.
The machine's operable parts must be placed within one or more of the reach ranges. An "operable part" is defined as a component of an element that's used to insert or withdraw objects, or to activate, deactivate or adjust the element. Examples include buttons, buckets, switches, handles and doors.
Elkin explained that, when the element is a vending machine, product must be delivered at a minimum height of 15" to all users, and that the entire button or switch array must be within the reach range. "Within reach range means just that -- not above or below," Elkin emphasized. "The bottom of the vending bucket can drop lower and come up on a conveyor, but it must be delivered at a minimum of 15 inches."
The revised ADA rules also include "scoping" requirements, specifying that at least one of each type of "depository, vending machine, change machine, and fuel dispenser in covered locations" meet the new standards.
"If you have a bank of similar machines, at least one of each type must meet the standards," explained Elkin. "If you have three cold-drink machines in a bank, only one needs to comply. If each machine is selling different products, people with disabilities should have access to all of them."
Machines on different floors or in different places on a floor are not considered to be serving the same group of people. Therefore, at least one of each type of machine in each area must meet the ADA requirements. In a hotel, for instance, a vending bank on the first floor that's ADA compliant doesn't cover all floors, Elkin instanced, since a person with a disability shouldn't have the additional burden of coming to the lobby to use the service if the machines on his or her floor aren't compliant.
The technical requirements of the ADA standards, unchanged from 1991, require that equipment be designed so that all users, with or without disabilities, can use the same controls or receive product in the same way. It cannot require extra steps for persons with disabilities.
The rules for operable parts specify that they be operable with one hand, and that they do not require tight grasping, pinching or twisting of the wrist. The force required to activate operable parts can be no more than five pounds.
Elkin explained that the ADA standards apply to "fixed equipment," which can include vending machines. When a public entity or a public accommodation installs a new vending machine, or replaces or alters an existing one, then if that machine is "fixed equipment," it must comply with the applicable ADA accessibility standards.
"Fixed" elements are covered under the rules because they're considered to be part of the built environment, since they are attached to the facility. "Fixed equipment" is defined as being built into the structure of the building, attached to the wall or floor -- not freestanding.
One way to ascertain if equipment is fixed is to put it through the "upside down" test, the speaker explained. If the building were turned upside down, any machines that would remain in place rather than fall to the ground are considered "fixed."
A vending machine is not considered to be "fixed" simply because it's plugged into the wall, Elkin continued. "And if machines in a line are bolted together, but not affixed or attached to the building structure in some manner, they are not fixed equipment," she added.
One example of fixed equipment would be a coffee machine that is plumbed into the building's water system, or attached by electrical conduit, rather than simply plugged into an electrical outlet. In such a case, entities covered under the ADA must provide new and altered machines that comply with the 2010 standards.
If a covered entity provides vending machines that are not fixed (freestanding), it must still ensure that they are accessible to persons with disabilities: an accessible route and clear floor space are still required at installation by the both the 1991 and 2010 standards.
As of March 15, vending machines in covered facilities must comply with the 2010 standards if there is a change to a building or facility that could affect its usability. Such alterations include changes due to remodeling, renovation, or changes or rearrangement of structural parts or elements.
However, under safe harbor rules, existing fixed vending machines that comply with the 1991 standards and are not altered or replaced are not required to be modified to comply with the 2010 standards. The safe harbor no longer applies if the covered entity replaces or alters the machines -- new or altered machines must comply with the current standards.
Elkin concluded by answering the much-asked question of how the ADA rules are enforced.
"Technically, there aren't fines. But the DOJ can seek penalties for noncompliance up to $55,000 for the first violation, against the covered entity," explained the speaker. "Sometimes, it can just seek injunctive relief."
She emphasized that it is not the vending operator who is required to comply with the regulations, but noted that the accounts they serve will rely on their cooperation and assistance in providing accessible vending services, in order to meet their ADA obligations.
ADA information line (DOJ): (800) 514-0301 (v); (800) 514-0383 (TTY)
ADA website (DOJ): www.ada.gov
National Network of ADA Centers/Disability & Business Technical Assistance Centers (formerly DBTACs): (800) 949-4232 (Voice and TTY)
ADA Update At OneShow
NAMA will hold a follow-up session on the new ADA requirements during the OneShow in Las Vegas on Wednesday, April 25. It will be part of the Government Affairs Symposium, which begins at 8:30 a.m., and will be presented by Carolyn Doppelt-Gray of the Washington, DC-based law firm Proskauer Rose LLP. She counsels clients in a range of industries, including lodging, stadiums, retail, universities, restaurants and hospitals, on all aspects of disability-related employment and accessibility requirements under federal, state and local law.