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Boynton Village - Lee Yaffe REASONABLE ACCOMMODATION REQUEST SUBMITED BY: Lee Yaffe BOYNTON VILLAGE i r � 1U•I —� IT-1111111,-11111111,111,0111111111111 ( I 1 „, 111 i .. .. pIIIIli111111Jilllillllll!I V�IIIIIVI IIIII I 1.. � 1I II 1111111 IId111111111111lll IIIIIII11 IIIIIIHIN Ih!i @IIIIIIIII IIIIIIiili lll• I 1 n. -- 4 _ 1 -.1._J11111 IIIp1 ., I :!., LILLIIIIIII!i�lll II LIII.I'I I IlU11.1111111111111�1111 i 1!uVllll l pill ll6lll'lllllal ;III III III IIIIIIIIVIIIIIIIII I IIIIII I I I �� i - r , ,:� . � - . -. -.:- __ -- .— _ —_ �� I I IIILIIIIIIIIIIIIIIII IIIIIIIIII�I!II�.I,IJIIIIII JIIIIIIIL_[ 1 ■+err ' !i !ifirrall11 !;ir I II �IIh!II i U1111111 1 1�illlllllll'' IIII ' il. �� ! 11 I �:,. , , I � � •�I � 11111111111 11161 1101111Iillii111 II IIIII h� IIII 1111! ! ! iI iI i . 1 I „ — � . — _. . 11 I_L1 ,I. II IIIiIII:VIIII) Ill11!i, I_I 11L�III!h!1� !I;, I, ,r O= .. . 0 I II �II� IIIVIIIIIIIl1 II 1 J 11 1111111111 III III f101�llllllPl I'h1011(IIII I III' I!I I I I`i! !�' SRN �, 111!1!li,l i ii, T 1 1111 �' gN I� ,�° , � � __ -- — jail_ ® � _ _ ,� . — — II:!iF a :'__ j l ( i i ;l y d i'.'a, ; !div iL - 1114 k';'' i LII II �II,III R(''. �+fJ , �� K. �," �' , .; �� ®I �� f i r, - ' ' F ll I t 1 � 11111 1�GIL1111111111'1i . III'lllll . �� I 1111 Pik �, .� �� L 1 9 1 5 k' el 1 F i i A w dp V ' l ull ( 4 WEST ELEVATION — • . L: _ sole: ,ro• - rc REASONABLE ACCOMMODATION REQUEST SUBMITTED BY: LEE YAFFE January 27, 2015 Revision #4 / April 2, 2015 INDEX OF DOCUMENTS Reasonable Accommodation Request Application Section 1 Exhibit "A" - Property Description Section 2 Exhibit "B" - Colored Elevations, Site Plan and Floor Plans Section 3 MPMD 15 -001 and MSPM 15 -001 Exhibit "C" - ADA and FHA Guidelines Section 4 Exhibit "D" - Article II Planning and Zoning Division Services Section 5 Section F. Request for Reasonable Accommodation Boynton Beach Ordinance 13 -033 1. ADA: Guide to Disability Rights Law • 2. 42 US Code 12102 Definitions of Disability 3. Nondiscrimination on the Basis of Disability by Public in Commercial Facilities 4. Chapter 32 The Americans with Disabilities Act and the Fair Housing Act 5. Americans with Disabilities Act Title III Regulations 6. FHA: U.S. Department of Health and Human Services 7. Alcohol, drug Addiction and the Right to Fair Housing Exhibit "E" - Florida Statutes Section 6 Exhibit "F" - Florida Administrative Code Section 7 Exhibit "G" - Records Filed with DCF Section 8 Exhibit "H" - State of Florida Medical License Section 9 Exhibit "I" - Master Plan MSPM 15 -001 Section 10 Exhibit "J" - U.S.C.A. Code Section 11 Exhibit "K" - Florida Statutes Chapter 119 Section 12 Exhibit "L" - Chapter 768 Section 13 • 1 b, P` . Reasonable Accommodation Request City of Boynton Beach Ordinance 13 -033 Mixed Use Building at Boynton Village Revision #4 / April 2, 2015 OUTLINE REQUESTED INFORMATION: 1) Contact information: Lee Yaffe 6075 Via Crystalle Delray Beach, FL 33484 2) Description of property including address: (See Exhibit "A " /Section 2) Boynton Town Center PCD PT of SUM -PAR 5 in OR24663 P1289 LYG W of & ADJ to Retention pond number 2 800 N. Congress Ave. Boynton Beach, FL. 33426 Parcel Control Number 08- 43- 45- 20 -29- 019 -0053 Official Book records 24663 page 1289 3) Description of accommodation and specific regulations and /or procedures from which accommodations are sought: Request for the allowance for the construction, of a four (4) story mixed -use building. This request will be facilitated through the submission and approval of an Approved Master Plan Modification (MPMD 15 -001) request to Boynton Village and Town Center and a Major Site Plan Modification (MSPM 15 -001) for the intended building to house the intended Reasonable Accommodation Use. The proposed building will include; medical use and medical office use on the first floor of the building, a Residential Detoxification clinic on the second floor of the building, and four (4) apartment units on each of the third and fourth floor of the building. (See Exhibit "B" /Section 3) 4) QUALIFYING STATEMENTS: Residential Detoxification Substance Abuse Treatment Use - including the proposed use for in- patient care. (Intended use) At the initial time of our initial request for the Reasonable Accommodation for the intended use: The City's current Code of Ordinances and Zoning Regulations did not make provision for uses that provide for Residential Detoxification Substance Abuse Treatment Programs, and/or other in- patient medical treatment, within the City limits. The strict enforcement and interpretation of the City's existing Code of Ordinances and Zoning Regulations could have an undue hardship upon persons with disabilities and those needing services including a facility for the intended use. 5) Persons in recovery from alcohol or other substance abuse are deemed "disabled ", as a matter of law and are deemed a protected class pursuant to the Federal Fair Housing Act ( "FHA ") and the Americans with Disabilities Act (ADA) (See Exhibit "C" /Section 4) These regulations are in great • detail and are easier referred to rather than enter their voluminous pages herein (Section 4). 2 • 6) The City has adopted a relief procedure pursuant to Ordinance #13 -033, establishing the necessary process to consider and act upon appeals for a Reasonable Accommodation Request (Exhibit "D " /Section 5), so that the Land Development Regulations at Chapter 2 - Land Development Process - Article 1, Table 2.1 (Section 5) along with Planning and Zoning, Article II, Section 4.F, are consistent with the FHA and the ADA overall guidelines. This would provide for persons with disabilities and providers of services to such persons could seek a reasonable accommodation from local laws and ordinances which may have an impact and undue hardship upon the disabled, as indicated in Exhibit "C" /Section 4; and with the consideration of the approval of Applicant's request, the City desires to implement certain conditions on the approval for the protection and confidentiality of Applicant's clients and continued compatibility of the use within the existing zoning district; and Applicant has agreed to the proposed conditions, which are further set forth herein; and the Parties have endeavored to resolve their differences and have consented to this "Agreement" in resolution of all issues and each has agreed to and accepted all of the terms and conditions as provided by these regulations herein. NOW, THEREFORE, for just and reasonable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Recitals. The above - referenced Recitals are hereby adopted as findings of fact and incorporated herein. 2. Approved Uses and Site Compatibility. City grants applicant, as part of the proposed building, the right to include its Residential Detoxification substance abuse treatment services (the • "Services ") on the second floor of said Building, as that use is defined and regulated by Section 397.311, Florida Statutes, Section 397.311 — DEFINITIONS (Exhibit "E" /Section 6) and Chapter 65D -30, Florida Administrative Code — Substance Abuse Services (Exhibit "F" /Section 7) and agrees to a timely execution of all required documents, requested by the applicant, in order to obtain approvals and licensure from all Local, County, State, and Federal agencies to implement the Services at the Property (intended use), subject to the following additional conditions: a. The Residential Detoxification Clinic shall be limited to a total treatment capacity of no more than twenty -four (24) client beds at any given time on the second floor. b. Services shall only be provided to scheduled or admitted clients for in- patient treatment. No walk -in clients /patients shall be accommodated or treated by applicant, and no outpatient services shall be provided by applicant to any persons. c. No other entity is permitted to conduct any other business on the subject Property that is not otherwise an approved use pursuant to the Zoning Regulations in effect at the time of this agreement. This approval is not intended to preclude the transfer of ownership to a wholly owned subsidiary, affiliate of the applicant or to a purchaser of all of the ownership interests in the building. No Residential Detoxification Facility shall be allowed to operate at the Property while applicant occupies the premises. d. Vehicles used to transport patients to, or away from the Property shall not traverse the adjacent private streets or drive aisles within the subject development or adjacent mixed use development for any reason except, if necessary, to access a patient's residence. • e. Once the applicant has received final approval of all of the "process", applicant shall provide the City with copies of all records filed with the Florida Department of Children and Families 3 ( "DCF ") (Exhibit "G" /Section 8) for this location, regarding the Residential Detoxification • use of the Property. Applicant will comply with all regulations set forth by DCF, the regulatory body that oversees Residential Detoxification Clinics. Applicant shall further provide an annual report, executed under oath by an authorized individual to bind the Applicant, confirming the number of beds used on the Property do not exceed the number of beds set forth herein f. Applicant shall not be permitted to administer intravenous detoxification medications, to its clients residing at the Property, except under the strict control of a medical physician licensed to practice medicine in the State of Florida and as "required" by the State of Florida. (License Attached as Exhibit "H" /Section 9). Once the "applicant" is granted all of the final approvals required, the applicant will address all of the minimum licensing credentials for medical representation for this facility. 3. Client Safety, Privacy and Security. The safety and protection of applicant's clients is a paramount concern for the City as well as the "applicant ". The City also has an equally paramount concern to prevent homelessness and the potential victimization of applicant's clients who leave against medical advice and who have no other local dwelling within which to reside. Therefore, in order to protect the safety, privacy and security of applicant's clients, the applicant further agrees to the following conditions: A. Required Site Improvements. i. Applicant shall maintain the Property as a secure, closed campus at all times by the installation of regularly monitored closed - circuit cameras to monitor ingress and egress of all persons to and from the • Property as well as internal alarm systems to notify on -site staff of persons attempting to enter or leave the Property. ii. Applicant shall erect a wall or fence or equivalent landscaping material, both to secure the Property and provide sufficient safety, screening and privacy for the benefit of its clients as set forth on the attached Approved Master Plan (MSPM 15 -001) ( Exhibit "B " /Section 3) iii. All Site Improvements and Building, as set forth herein shall comply with all City rules, regulations, ordinances and practices pertaining to the permitting, design and installation of same as applicable to zoned properties as set forth on the attached Site Plan as (Exhibit "B "/Section 3). iv. The approved site plan modification and all permit applications for the Site Improvements shall be submitted to the City within sixty (60) days of full execution of this Reasonable Accommodation Request. The 60 -day deadline to apply for Site Improvement permits, set forth in this section, may be extended by the City upon good cause shown by applicant Operation of the Residential Detoxification Clinic shall not commence until passing all necessary inspections and obtaining the required Certificate of Use and Occupancy, which shall not be unreasonably withheld or delayed by the City. v. Failure of applicant to complete the Site Improvements and Building within twenty-four (24) months, after issuance of all permits necessary for the construction of the Building, shall be deemed a breach of this Agreement. In addition to the other remedies set forth in this Agreement, City may withhold issuance of the Certificate of Use and Occupancy required until such time as the Site Improvements and Building are completed, unless an extension to complete the Site Improvements and Building has been granted by City. • 4 vi. City agrees to a timely process of all permits submitted by Applicants for the construction of the • Building and Site Improvements and all other permits for interior renovations to implement the Services and that City approval of same shall not be unreasonably withheld, delayed or denied by City. vii. Nothing herein shall require the installation of the Site Improvements or construction of the building until the applicant elects to proceed with the construction of the facility and the required permits are issued by the City of Boynton Beach. B. Transportation. No clients shall be transported to the Property via ambulance except in the event of an emergency; however, nothing herein shall prevent the use of ambulance or paramedic services from transporting persons from the Property to a hospital or other medical provider for emergency medical services. Applicant shall request that the ambulance or paramedic services minimize the use of sirens. C. The applicant shall use its reasonable best efforts to prevent clients from leaving Property without being properly discharged and personally transported off the Property by vehicle or other pre-arranged transportation to a pre- determined destination. Should a client elect to leave the Property without being properly discharged and/or against medical advice and not have pre - arranged transportation, applicant shall contact the City's Police Department to advise them that a patient is leaving the facility without being properly discharged and against medical advice and that the client does not have pre- arranged transportation. However, consistent with 42 U.S.C.A. § 290dd -2 ((Exhibit "J "/Section 11) relating to required confidentiality, applicant shall not be required to publicly disclose the identity and/or status of the discharged client. (Note) definition of the "status" of the client shall hereby be defined as; "the reason or reasons the client requested services for any habitual or latent drug dependency, except as required by the State of Florida and any or all of the "AGENCIES" having jurisdiction ". D. The City acknowledges that there is currently sufficient parking for the use/s set forth in the description • of the Building. The City further acknowledges that the City's Land Development Regulations do not contain a parking ratio specifically applicable to the proposed use, and will be determined as tabulated for site plan approval. MPMD 15 -001 and MSPM 15 -001. For purposes of this agreement and this approval, applicant's parking spaces shall be for employees /staff, guests, patients and residents as described and indicated in the referenced above MSPM. Operational policies shall be established and enforced preventing the use of those prime parking spaces located along the entrance road from Congress Avenue by any staff, patients and /or residents of the subject property. 4. Code Compliance. Should there be any allegation that the conditions of this Agreement or any ordinance of the City have been violated by applicant, and as a mandatory condition precedent to the commencement of any formal code enforcement, administrative, or legal proceedings by the City, the City shall first provide written notice to applicant of any credible and verified code enforcement issue or question, within ten (10) business days of such allegation and shall follow code compliance procedures as applied to other businesses and properties within the City with respect to notices and actions taken to address occurrences of non - compliance. 5. Binding Effect. This Agreement shall be binding on applicant, the City, and/or their respective elected and appointed officers, officials, agents, employees, owners, contractors, and operators. All terms and conditions set forth herein shall be binding upon applicant's successors in interest. 6. Additional Waivers by Applicant. As partial consideration for the entry of this Agreement between the Parties granting reasonable accommodation, applicant hereby knowingly, willingly, voluntarily, and with the assistance and advice of counsel as to the same, hereby waives any and all of its rights, as well as those of its affiliates, subsidiaries, officers, directors, employees, and agents, and other legally - affiliated corporations and the entities specifically including the applicant's principals and any entities owned or controlled by the applicant's principals to the use of any additional Residential • Detoxification beds within or on the Property, beyond the 24 beds located on the second floor, granted 5 in this Agreement. Applicant hereby acknowledges and agrees to the inclusion of this voluntary waiver • in this Agreement. The parties acknowledge and agree that this waiver does not apply to the remainder of the uses in the Building. 7. City Property. Nothing herein shall be construed to grant applicant any rights to any other property in the City other than the Property as described herein for any purposes. 8. Indemnification. Applicant agrees to indemnify and hold the City, its agents, servants, and employees, harmless from and against all claims, damage, costs and expenses, including attorneys' fees, arising out of applicant's performance, or failure to perform, any of the promises, services, or functions required by the Agreement. There shall not be any third party beneficiaries to this Agreement and the only parties with standing to enforce the terms of this Agreement shall be the applicant, the City, and their legal successors -in- interest. 9. Governing Law, Jurisdiction, and Venue. This Agreement has been executed and delivered in, and shall be interpreted, construed and enforced pursuant to and in accordance with the laws of the State of Florida. Applicant represents and agrees that it is familiar with all laws, ordinances, and regulations applicable to the services to be furnished under the Agreement. The Agreement shall be governed in all respects, whether as to validity, construction, capacity, performance, or otherwise by the laws of the state of Florida. Venue for any action arising from or related to the Agreement shall be brought in a court of competent jurisdiction in Palm Beach County, Florida. 10. Assignment. The parties may assign their rights and obligations under this Agreement to any successor entity, to a wholly owned subsidiary, to any entity in which the party has an ownership interest, or to an entity which acquires substantially all of its assets. The Applicant shall provide written notice to the City Attorney of such a transfer of interests within thirty (30) days of such sale, assignment or transfer, • it being acknowledged and understood that any sale, assignment or transfer shall require a new license be obtained from the State to use of the Property for a Residential Detoxification facility. 11. Waiver. Failure of a party to insist upon strict performance of any provision or condition of this Agreement, or to execute any right contained in this Agreement, shall not be construed as a waiver or relinquishment for the future of any such provision, condition, or right, but the same shall remain in full force and effect. 12. Enforcement of Agreement. Nothing herein shall otherwise be construed to limit a party's ability to exercise all judicial or administrative remedies available to it. Any sections of this Agreement which could be construed to limit or eliminate a party's liability or access to the remedies available at law or in equity shall have no application. City is a political subdivision of the State of Florida and enjoys sovereign immunity. Nothing in the Agreement is intended, nor shall be construed or interpreted, to waive or modify the immunities and limitations on liability provided for in Section 768.28, Florida Statutes (Exhibit "L " /Section 13), as may be amended from time to time, or any successor statute thereof. To the contrary, all terms and provisions contained in the Agreement, or any disagreement or dispute concerning it, shall be construed or resolved so as to insure City of the limitation from liability provided to the State's subdivisions by state law. Should either party be required to seek judicial intervention to enforce the terms of this Agreement, the prevailing party shall be entitled to an award of all reasonable attorneys' fees and costs, including any administrative, trial- level, appellate, or post judgment proceedings. 13. Resolution of All Matters /Release. Limitation of Agreement. Notwithstanding anything to the contrary contained herein, this Agreement is specifically limited to the Residential Detox Clinic and is not intended to limit or constrain the remaining uses on the Property as allowed under the SMU Zoning Clarification. • 6 14. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which • together shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a .PDF format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or .PDF signature page were an original thereof. SIGNATURE PAGE FOLLOWS • • 7 SECTION 2 EXHIBIT "A" PALM BEACH COUNTY PROPERTY APPRAISER PROPERTY DESCRIPTION & PARCEL ID • 1/27/2015 www.pbcgov.com/ papa / Asps/ PropertyDetail /PropertyDetail.aspx ?parcel= 08434520290190053& 'Orli, Gary R. Nikolits, CFA Homestead Exemption - Property Appraiser , ' „ - Palms43 ach County 0 r -1 1 Location Address 800 N CONGRESS AVE Municipality BOYNTON BEACH Parcel Control Number 08- 43- 45- 20 -29- 019 -0053 Subdivision BOYNTON TOWN CENTER PCD I Official Records Book 24663 Page 1289 Sale Date JUN-2011 Legal Description BOYNTON TOWN CENTER PCD PT OF SMU -PAR 5 IN OR24663P1289 LYG W OF & ADJ TO RETENTION POND #2 J r _ Mailing address � Owners l �t 36 SE 3RD ST ' COMPSON ASSOCIATES GROUP INC BOCA BATON FL 33432 4914 j Sales Date Price OR Book /Page Sale Type Owner ) JUN -2011 $100,000 24663 / 1289 WARRANTY DEED COMPSON ASSOCIATES GROUP INC , No Exemption Information Available. i Number of Units *Total Square Feet 0 Acres 0.4211 Use Code 1000 - VACANT Zoning SMU - Suburban Mixed Use (08- BOYNTON COMMERCIAL BEACH ) • Tax Year 2014 2013 2012 Improvement Value $0 $0 $0 Land Value $98,216 $96,290 $96,290 Total Market Value $98,216 $96,290 $96,290) All values are as of January 1st each year Tax Year 2014 2013 2012 Assessed Value $98,216 $96,290 $96,290 Exemption Amount $0 $0 $0 II Taxable Value $98,216 $96,290 $96,290 . Tax Year 2014 2013 2012 l Ad Valorem $2,224 $2,186 $2,184 Non Ad Valorem $45 $42 $38 Total tax $2,269 $2,228 $2,222 I I • http: / / www.pbcgov.com/ papa / Asps /PropertyDetai I /PropertyDetai I .aspx?parcel = 08434520290190053& 1/1 ) WA M n -I 0 Z CA) • EXHIBIT "B" COLORED ELEVATIONS & SITE PLANS REVISIONS BY SHERWIN WILLIAMS SHERWIN WILLIAMS SHERWIN WILLIAMS SPLIT FACE CONC. BLOCK C/M CACHET CREAM 6371 VANILLIN 6340 BAKED CLAY 11/02 SANDSTONE IIP 0 0 © Cl.) • CANVAS AWNING SHERWIN WILLIAMS - - SHERWIN WILLIAMS STANDING SEAM METAL ROOF Slattery & TERRA COTTA SW 6989 DOMINO SW 7006 EXTRA WHITE TERRA COTTA 0 O © O WI: _. Associates ARCHITECTS PLANNERS 2060 NW BOCA RATON BLVD. SUITE 2 © BOCA EATON, 561-39 FL 33,01 O A � TEL 56 .J92•J946 r � © F AX: 56. AWW 792.5602 p r. t r -- `'� SIAT ERYARORIEC S.0018 _..._.'. �.I.I.I.I�� - 41 ®a®; Omit_.® le r OM f. 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SISFi ielift• y � I.r,III - 4 limmimmw ^ Q 0 . . . ` uric E/„ , �■ � �` - - 4ii ® , ~ 1- , E IIIIIIIII IL . 1 , IIIIIIIII III Q } / a� r, Ivl M m r� f r . 111111 111111011 3 f I gillllllJII:il c /. , _ .. NV ' Illpi ' 0 . M , :: .,,,,iJiii, , - a `a sur 1_ NORTH ELEVATION SOUTH ELEVATION SCALE: 3/32 •1. -0' SCALE: 3 /3Y + 1' -0' RE GS,RATION 4AA FLORIDA FLORO) REGISTRATION 4AA0007767 ALL PAINT COLORS, TEXTURES AND MATERIALS TO MATCH EXISTING ADJACENT BUILDINGS DRAWN DR ON[ONCD PS DAIS 9 -10 -14 96A LE AS NOTED JON NO. 2014 -23 A403 ..jj ■ io I -95 m< Master Site Plan Parcel Data :w • Aar 433 n - Cortina at Boynton Villaaa Boynton Villa% Boynton Town Center Totals In Acres % of the site Phase Totals SMU Parcels 1 8 2 7, U SMU Parcel 3 SAW Parcel / SMU Parcel 5 6, 8 8 C3 - 01 2. 7,1 5 B, 7 N Z N m 1.2onlna District SMU m A 4.478 8.915 19SMU SMU SMU C3 a 2 Area of Site 32,288 390 24.543 89264 a R 3. Land Use • Aereape Breakdown z C e i a Resrdenbel 32.198 1.410 2.590 0,160 0.000 36.358 396% - C b. Commercial 0 000 0000 0000 18.620 24.513 43.163 48.7% T c. Recreation thee fe:ciudinp water are 0.090 a 750 1250 0.000 0.000 2.090 2 4% f R_nal p d Parkins Garage 0.000 0.780 1.280 0.000 0.000 2,040 23% h oemm0ns a vd. _ m e Mead Use 0.000 0.000 0.000 0.370 0.000 0.370 0 4% tOMer Areas 0.000 1,558 3.845 0.440 0000 5643 66% o u COfl re$$ Ave. a. Total Area d Site 32.289 4.478 8.965 193901 24.513 89.884 100.0% >_ 9 4, surface Cover !ii 1 // a. Ground Floor Area (building footprint) 7160 0.600 410 2.590 3.576 5 732 20468 22.0% R 9 C townhouse 0.800 6 c .°-r Site Location Map = \- single family 2800 2.800 2 ¢ ¢N a 3 670 3.670 Section 20, Township 458 Range 43e N.T.S. leasing office r recreation 0 090 0.090 6 water Area fins svnmmma cools) 0046 0270 0.000 0440 0410 1.166 1.3% C. Omer Impervious Areas - including paved area d cubits private streets. parking lots. driveways. and sidewalks. patios decks and amlebc counts 9.243 0 975 3.399 9416 14247 37.980 43.2% m d. Total •noernous Area 18.449 2.655 5.989 13.432 21.089 59.914 66.5% 6'l N . a. Landscape Areas 15.839 0265 0.535 6 158 3 454 26.251 29.0% ,m, j L Other Pervious Areas 0.000 1558 2441 0 0 3.999 45.0% r (.l - - -� ^ - -- -- - - - - -- -- -- -- -- a Total Pervious Area 15.839 1323 2.976 6.156 3.454 30.250 33.5% N $ s / . _ - h. Total Area of Site 32.288 44 >< 79 8.965 19.590 24.543 89.864 100.0% $ +' 1• L - _ I 5 Floor Area SF AC SF AC_ SF AC SF AC SF AC TOTAL SF TOTAL AC m42 i C3" a Residential 600240.00 13.779 299,939.00 6.886 550472.00 12.637 33.206.00 0.762 0.00 0000 1483.85].00 34.064 lS a / - - - E A b aeag • Reon I Leas na Office 3.96000 0.090 0.00 0.000 7.840.00 0.180 0.00 0.000 0.00 0.000 11.80000 0 270 U - 1 • c Commercial Retail / 5h000ina 0 00 0.000 000 0 000 000 0 000 124.56200 2.860 225.688.00 5.181 350250.00 8 041 0 E. a) '. I I , d Communal Retail /open red Dart d puAdino arm 0.00 0.000 0.00 0.000 0.00 0.000 0.00 0.000 4 970 00 0.114 4.970.00 0.114 `Ol - V Cl. ' I _ _ _ e. Commercial Restaurant 0.00 0000 000 0 000 0 00 0000 24393.00 0.560: 10329 00 0.385 38722.00 0.945 V C m Or Cl - /.: l - I I Bank 0.00 0.000 0.00 0.000 0.00 0.000 0.00 0000 9.00700 0090 9.007.00 0.090 3 t Q N CO ' Tract c - - H a.O 0.00 0.00 0000 0.00 0000 10,000.00 0230 0.00 0.000 10,000.00 0.230 ZQ .- 32 '17 Mend Parcel) NAL --_- r h ToWResidential Floor Area 804200.00 13.889 299.939.00 8.886 558.31200 12.637 33.206.00 0.762 0.00 0.000 1.495.657.00 34.064 N 01 N C 2]4.3 at LW DO 6.4 - - - I Total non- resrdenlia Fl o or Area 3.960.00 0.090 0.00 0.000 7.840.00 0.180 158.955.00 3650 249.991.00 5.770 420.749 9.690 Or p U > LQ -- - Pnw 1 1 - Phase - - -- 1 6. N Umberd Resltlentiel Dwelling Unib 101AL8 Nmr�n g J SM AOe6 Phase 11 a Multi- family Resdanad SMU LakePercd t 1Detlrcom 132 40 84 16 0 272 O • 2 bedroom 40 .. 31. sae: I El 37S acres ( 3bedroam 192 1 26 80 0 0 810 c i� 1 _ - - .. Tract Z b Single -lamly . 0 4 - - - _ I- ow, Par eA 1 bedroom D 0070 sl a CD C - - .- u ! edraom 80 0 " I - O c Tgwnnause _ C 1 Pnw n 1 Q-' z bedroom 0 N O - Phw n Parcel 3 bedroom 0 > ' CO U - 4 badraoe 3e _ 3 . k'- t • _.._.. SMU P _ .. . - ' _. -. _ -_. -- __ "_ • a 1 e67.. excel e : ,. ° (Rile P ,C 1 Z a. Tab) DweNnp UnBS 1 - (TOtall ''gyp \\ VJL�7! i Tred R2 - .1 M _, a gm- Y998] al I 7 Gross Dwell rw - Untie per Acre 14.90 48.00 19.08 0.82 8 Vanes accord n9 fo phase - - 3W0 B � O L. - .41]6 crr .._ - -- Q � � � // 5P^e' RENAISSANCE • CO r.. _ p =P ru17 r - . _... _ -: I -p M Recreation Recreation /Ces gn Off roe ed 13 Provided 13 Required 0 Pro4dad Required 5 Provided Required Provided Required 0 Proerd Required 18 Provided _ : - 1 Required R R I R u R u - I ♦933 ar'xas - _ add ub lam Iv parkins O 1 a � CO 1 " -_ _. - : _ l• '150 awes I C3 Parcel a One bedroom units $ 1.5 parking Spares 198 198 60 126 24 0 408 'r Three bedroom cents 13 2 0 narking soaves 48 3 48 52 120 0 0 0 Commercial 1 Q 2 0 panting snares 3 280 592 0 0 1256 r _ - 1526 r+es _J 220 _ space p - - - e t i _ - A - .. ._ 1 O , Singl -family a 52 67 52 �. �. 3k - _ � _� f I n r _ _ -.. �- One bedroom unds ® 15 spaces 0 0 • 4 - _ r 7 Two bedroom units 91 2 0 padana spaces 0 D 1 _ 1 r 111 J Thmo bedroom units 99 2.0 park nil spaces 160 160 16 Tree 1 f � 1 8r _ 6646 Perca1 .. :C3 ; (ROti ParcMl • One bedroom units (q 1.5 parking scares 0 0 ( /, I W: : - PMre I _ 29 .E i- -+ 1: _ - u.u6eo.. 1 Two bedroom unrb lot 2.0 parkins soacas 0 0 r`4•IJf O i �p p ,.w. = ttt _ - _ Three bedroom un ts 29 2.0 perking spaces 0 0 ('}'� "' LL l I Yreee3 R - I _ Facer bedroom un is 0 2 D Dark err 200 SF area spaces 68 68 6 `v 1 _ 965 :, g -s - .s - Traci a I rw Center 1 (@ 0 er Q I - N r _ - - - . - - (Riley Par cel) _ Shopa C - 2 ReWl 0 0 0 623 1154 17] m I ,�. Y - 2.5138 2E31 Restaurant Area 0 0 0 122 51 17 1 W .: - �. l - - - Bank Area 0 0 0 0 45 4 C . y_ - _ - : -x .. - + - .. _ 1 Office 0 0 0 50 o s 4227 •-•^', . °, _- . _ - _ _ ptwas l - T Total Remind P arkirw 923 923 392 0 543 1 � 819 795 1250 121294 2 LL -I-, 4 1 'v *-m - -_ a, mow r- Pleat - p P `cµ s- I Garages ncludlno around level 228 391 730 0 0 1349 �) V ) CZ Z Pbese _ - 1 1 { a ,Ares jj f ) I R Pwcd C3 - PecN9 - I C3 P rW1 1 .a. Tot Parkin Provided 9 38 391 852 795 1294 42]0 V o I 'SMtI T rdt a '''''d ciao SMU u P xcel e� - T( 0i1 22 +1 - _ [ Caryurml d i - - I 0 Accessible Pandrq 21 21 8 18 17 17 28 34 37 97 117 CZ > C °i°el Net Difference e 15 minus -1 plus 9 minus -24 ores 44 oi. 8 • • 2 1 -mixed lse . • 14u yes --• i se - _ n aYreaba 1 "- - 1 - 15 @ i O 1 ' 120 dOek " -- 1 CaMa at agreon Village Boynton Village I Boynton Town Center Overall Phase 7dee m i Tradz -- \ - CONGRESS- AVENUE - IfRd./' Farrel)' -. (jj E' p ( IoaZ -1 =�.) Oyy tr tr .r / - -, 2.015.M S L Master Site Plan Pared Data Parcel Acreage Acreage a-+ • Rd+ry. Parcdl 2,31111 a .1. _ - - _.._. - _ - __ -- - - SMU Parcel) 1,279 C 30]11 at _ ___ ... _. SMU Parcel2 31003 C O T • SMU Parcel 3 4.478 CO O SMU Parcel 4 8.965 W m • SMU Parcel 5 15.423 SMU Parcel 6 1.583 0 100 200 400 SMU Parcel 7 1414 Phase I = Lake Parcel. Spine Road, SMU Parcels 5, 6.8 7. C3 Parcels 1 thru 7 // SMU Parcel 6 1.170 SMU Lake 8.375 Phase II =SMU Pacers 1, 2, 3 4 & Park Parch \\ SMU P 3.000 Seine Road 4 913 rtd 9rr don=na ralI I I 81 62R I SMU Density = Tola1 of Residential Unite / Total Acres SMU Zoning krtluding Spine Road C3 Parcel 1 0.877 C3 Parcel 2 1 681 SMU Density = 1124 Midlinq units 1 81.629 Ares = 13.77 dwelling units per acre GRAPHIC SCALE 1" = 200' C3 Parcel 3 18766 Date 04 - 1612 C3 Parcel4 0883 Scale AS SHOWN C3 Parcel 5 1.660 PN# 1069 C3 Parcel 6 4.526 C3 Parcel 7 0 150 Tract C1 Canal Roadway Parcels Tract Z -1 0.007 Tract2 -2 0.064 Tract 2 -3 0.093 Tract 24 0.067 even E. Tate Tact Z -5 0.060 L Architect No .7 Tract 0.002 State of Ronda Tied FIR Z - 0.007 -FOR THE FIRM- Traci 213 0.047 Total She AC81790 1 106.499 Date JUN 9 c62, n10 f Drawing No. 1 M SD OF 1 erVI ib(4 15,5' REVISIONS BY Slattery & R L 1 RETENTION POND ---, - UTILITY EASEMENT Associates 6 PATIO LANDSCAPE _ FENCE (Tl-PJ ¢ 1 14 NO2' _ E 13933 1•402'16 21%U 167 y ARCHITECTS PLANNERS /4' -- _ , - . --, X 2060 NW B TON BLVD. d •'-''' rt„r • . 0 U❑ • - + [; , , C,�T A9OVE N. ,.. ` •.F n W .. SUITE 6 (1 1 �4 S . ❑ ❑❑ _ _ • , L iJ / ' , -� 1 ❑ O O 1. _ - FOOL - W B BOCA RAATON, FL33431 6' FENCE 1 '�L' 1 I PROPOSED FOUR STORT 1 �'_ - H • , TEL 3848 MIXED USE 5 1LDIKG � � j. _ ' 561-392 - I 1 ,. Cr - a __�_ (24p -Z SFJ ....__ ...__.. .._ ..._ ® _ W . - 1 1 a FAX 561 - 392.3402 — ._........_. S.: - m 1 -... — // R'W9LA7TFRYARCHITLCiS.COM m + � \ + _ a. littail a ' 9 i COVERED WAL •r . Mae,. lif . .. = '•....=iS. i • i _ _ ®I / p . .. - 1. . . ,� '. i m.r r r� EI MIIE" i � ,. 1 R. T -9p � f ear, --....-4,,, r' R.15.00. 0 Le F. ‘ 49 tir WO° ...'2 4.90' 00'00 , ibbl' b658'• 74 W - � g:�.i -- i emsas.s .' iii.w - - ,d _ _� Ht. An W N o � . - • �M " •' � L• • S ' • . f 1 '..� Q al 48 $452 I �/ / '1 '.*� i � t• 7� '" �� DUMPSTER / / 11 10111 ENCLOSURE \ T - -- / �: :I ' � > L� �� Al SEE DETAIL 51. \ ( / / \ / 1 ♦~ N• \ ♦rM� = Z - V • \ - EXISTING PARKINS INS \ L EXISTING PARKING ' 1 • � f� \ \ MOD Wm . (STING 655' 801 ' "' .; ' I • A ' ♦ ''.i, W O w 6.90 NSO'36'16" SPA�r ' AND It � I L 1. \ \ CRO55W ( '%L j� sTRIPMG ! .. 1E I r -� = i I H m 1 I 5' STRIPED CROSSWALK , ~:Y]_• ( ; a • R / 1-� j.i......�............. ■■ ■j �11� ,►, I .� N . r (/ \\ \\ -- •�s, ♦ •�, ESN `d : • N •' �{ ( � 01.* Atai• , i ( , , ■ \ --,- c ' ,' II I `x.441,4` rs ` � SITE PLAN / SCALE: 1/16 " ..1' -0" \ PAUL J. SLATif.RY FLORIDA REOBTRATION EAA0003361 MANN DR CHECKED PS DATE 9 - 10 - 14 SCALE 1. AS NOTED JOB NO. 2014 - 23 Z SHEET +. XI \ i If ) . ( . (? ' k CL U j SP -1 L ! I nn _ I REVISIONS BY I 95 _ _ n l��id� • d ' , I , 1 1 1 7 ho ` SITE P� ' ' hI11NU a:, _ CO . s/A.00) iiiiiinb 1 ii / i • o ♦ ` !- �t I . _ Congress Ave. , • � I Slattery & Site Location Map =� • � yi. Section 20, Township 45s, Range 43e N.T.S ! �■ -4 CAN -_ • ► .,+ 1 MN ME .11 i I ■.err _ _ r�r� 1 ' . MI IH Li:0' EX ISTING LAKE P ARCE L • F. • Associates ri m Mori ja F ARCHITECTS Co ii (--) j ( ,,t7 \ / / PLANNERS IP 11 1 i _ � \ L 1, 2060 NW BOCA RATON BLVD. U ill ' 1 ` J l d SUITE 2 i � � �Ii0111!�1l1i1kl E, \ *,r► I ' , ■ , Q I IM 2 . � • IN 47 \ ' ' - 1D BOLA RATON, FL 33431 ■ � ,� � Emillii..._ ' - , TEL:561- 392 -3846 in �� FAX:561- 392 -5402 W ° � i�l ' R O . I � ; ul ' WWWSLAIIERY:nrons l r 1 ono • I' fit ..._ .______ _. I Imo _ _ �i U W . _ . W !iii ICI iR / PROPOSED 1��1 _ I'� a o MN .- 4 STORY MIXED TARGET � II�1 I, ` / REIENTON POND WTATe S. F. I'IIIIIIIn !� _� I USE B UILDING -- n I I II II Inn1 � 1,5 STORY O loran! riplawe. — _ _p.-- -- , S TORY O ArrM i llti a sil . . .....„ _..... .---, p W . �:_ Jan r FM1 I ��e ��` / �im�si — _ iw .:... €'s . ' 1 __ + - � i L I--� F I O III C u` (I� v iol BUILDIN - ♦ ■ + _ I ` - •n 15DUS I 042555 . al 0 . ' I O O LLI 11 2 CO _�. � - �,® �,� ♦ �`�� +� I 1 .F. 111 I 1 ' l ' . . i t II+ rT, m 8 15 OR II `'' i 9••• � 1 ? 1 � �, :� I _ ; _�, �' 11111n-----.. ._T. III— — = - �, J �; - - — " E��■■ r IInk■�Q1r I I' -gi J IM L/ It•:lt�. / 4!- • I LOING F • 1 II 'I II I r -{ \ 7 iIiii. v A }'E I 11 = 1 il 1 z ,yI�am�■. MI s i� t ? _� _ ' � 1 _ 11 1 LOI — - ^ NI . J � RETAL , BUILDING - 1 i , O OT55 — , / .. .. aa.�� 6 F ' RETAIL fr r ff (I CO . ! O �a t • OFFICE / �i STORY , U 1 1 I� ! : 1 � � P i ouTL I BLM BUILDING K • I — . 4 .F. A V l iL 1 1 - �RETAL '.,. 0 RE5F V I II 15TOftY I 1 9, 9525F. 1 � )) . y.. „I u• I A OR -- % �_` ° � `\ DRAWN • 0 0 0 '• pmt _I ■ 1 1E �,//�u i u��i = _ ' 1I I 1 1 `I�_I— �1 f cNECKEo Imo/ n DATE 9 - 10 - 14 SCALE `� AS NOTED CONGF ',AVENUE — JOG ND. ^ 2 014 -23 LJ.. SNEET 0• 1 1 e ce MASTER PLAN W I-- ) f M P NOTE: INFORMATION ON THIS PLAN WAS OBTAINED FROM THE MASTER PLAN FOR BOYNTON SCALE: 3^ =300 \ ( VILLAGE SMU AND C3 BY COVELLI DESIGN ASSOCIATES INC. DATED 4 -16 -12 Q Z 5:: ¢i EXHIBIT "C" CITY OF BOYNTON BEACH ORDINANCE 13 -033 rr Exhibit "C" 1 ORDINANCE 13 -033 2 3 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF 4 BOYNTON BEACH, FLORIDA AMENDING PART III, LAND 5 , DEVELOPMENT REGULATIONS, CHAPTER 2, "LAND 6 ! DEVELOPMENT PROCESS", ARTICLE 1, TABLE 2 -1 AND ARTICLE "PLANNING AND ZONING DIVISION SERVICES ", 8 ESTABLISHING THE NECESSARY PROCESS TO CONSIDER AND 9 , ACT UPON APPEALS FOR REASONABLE ACCOMMODATIONS IN 10 RULES, POLICIES, PRACTICIES OR SERVICES TO AFFORD 11 ELIGIBLE INDIVIDUALS THE EQUAL OPPORTUNITY TO USE AND 12 II ( ENJOY HOUSING AS REQUIRED BY THE AMERICANS WITH 13 1 DISABILITIES ACT (ADA) AND /OR THE FAIR HOUSING ACT (FHA); 14 I , PROVIDING FOR CONFLICT, SEVERABILITY, INCLUSION; AND 15 EFFECTIVE DATE. 16 I 17 1 WHEREAS, the purpose of this amendment is to implement a procedure for 18 processing requests for reasonable accommodation to the City's Code of Ordinances, Land 19 Development Regulations, Rules, Policies and Procedures for persons with disabilities as 20 provided by the Federal Fair Housing Amendments Act and/or Title II of the Americans with 21 disabilities Amendments Act and 22 WHEREAS, staff recommends the adoption of the amendments to the Land 23 Development Regulations Chapter 2, Articles I and II establishing the necessary process to 24 consider and act upon appeals for reasonable accommodations in rules, policies, practices or 25 services to afford eligible individuals the equal opportunity to use and enjoy housing as 26 required by the Americans with Disabilities Act (ADA) and /or the Fair Housing Act (FHA). 27 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF 28 THE CITY OF BOYNTON BEACH, FLORIDA: 29 Section 1. That the foregoing "WHEREAS" clause is true and correct and hereby 30 ratified and confirmed by the City Commission. F C Documents and Settmgslpramrtoi\Local Settings \Temporary Internet Files\Content Outlook \7O3YIGDO \Ordinance - LDR Amendment Chapter 2 (ADA FHAX2) doe 1 11 Section 2. That Part III, "Land Development Regulations ", of the City of Boynton 2 Beach is hereby amended as follows: 3 Chapter 2, Article I, Table 2 -1, where in all processes administered by the Department 4 are summarized. (See Attachment) Section 3. That Part III, Chapter 2, "Land Development Regulations ", of the City of 7 Boynton Beach Article II, Section 4, Relief Regulations is hereby amended to add a new 8 I Section F, as follows: S < Section P. Requests for Accommodation 10 11 I. General 12 13 a. Purpose & Intent. The purpose of this section is to implement a procedure 14 for processing requests for reasonable accommodation to the Citv's Code of 15 Ordinances, Land Development Regulations, Rules Policies. and Procedures for 16 persons with disabilities as provided In the federal Fair Housing. Amendments Az 17 143 t1:S.C. , et. seq.} ( ~ .A ° and /or le o the mericans with Disabilities 18 Amendments 3601 Act(42 U .S,C, S 1 121.11, et q: } C 'ADA A "}. 19 20 b. Applicability. Any person who is disabled. or qualifying entities. may request 21 a reasonable accommodation with respect to the City's Land Development 22 Regulations, Code of Ordinance& rules,, policies. practices and /or procedures as 23 provided by the FHA and the ADA pursuant to the procedures set out in this 24 ordinance. For purposes of this section. a "disabled person'" is an individual that 25 qualities as disabled and /or handicapped under the FHA and /or ADA. The word 26 - individual - shall include, for purposes of this section, multiple people, or qualified 27 entities, 28 1_ 29 c. Notice to the Public of Availability of Accommodation. The Cit sy hall 30 endeavor to provide notice to the public, advising that a disabled,person may request a 31 Reasonable Accommodation. Such notice may include, but is not limited to.. 32 displaying a notice in the Cig's public notice bulletin board and to maintain copies 33 available for review in the Planning and Zoning Division, the Building Division, and 34 the City Clerk's Office upon request. and advising that the public disabled person may 35 request a reasonable accommodation as provided herein, 36 37 2. Submittal Requirements. A request bN an Applicant for reasonable accommodation 38 under this section shall be either oral or written. A written request may be submitted by C \Documents and Setimgstprauutoj\Local Settmgs\Temporary Internet Fder\Conteni Outlook\703YJODO \Ordinance - LDR Amendment Chapter 2 (ADA FHA)(2) doe 2 t 1 completion of a reasonable accommodation request form. which form is maintained by (and 2 shall be submitted to) the Planning, and Zoning (`'P &Z`) Division of the Department of 3 Development or other designee. 1'h reasonable accommodation form shall contain such 4 questions and requests for information as are necessary for processing the reasonable 5 accommodation request. The reasonable accommodation_ request form shall be substantially, 6 in the form set forth in. Subsection 3, below. The following considerations shall be applicable 7 for any application, information or documentation required: S a. Confidential Information. Should the information submitted by -the disabled 10 person to the City include medical information or records. including records indicating 11 the medical condition. diagnosis. or medical history of the disabled person, such 12 disabled person may, at the time of submitting such medical information. request that 13 the Cit to the extent allowed bv law. treat such medical information as confidential. 14 information of the disabled person - 1 he City shall thereafter endeavor to provide 15 ' written notice to the disabled .erson and /or their re.resentatiie of an r-•ue 16 received by the City for disclosure of the medical information or documentation which 17 the disabled person has previously requested be treated as confidential by the City 18 ' The City will cooperate with the disabled person to the extent allowed by law, in 19 actions initiated by such disabled person, to oppose the disclosure of such medical, 20 information or documentation_ but the City shall. have no obligation to initiate.. 21 p, rosecute or pursue am such action. or to incur any letral ar other expenses {whether. 22 by retention of outside counsel or allocation of internal resources) in connection, 23 therewith, and may comply. with any judicial order without prior notice to the disabled. 24 person. This subsection shall be subject, to local, state, and federal revisions to privacy. 25 laws, including but not limited to the , Health Insurance Portability and Accountability 26 Act (HIPAA), as it may be amended from time to time 27 28 h. Address of Applicant /Address of Housing. Unless . governed by 42 USC §. 29 290dd. in which case the address shall not be required, the applicant may be requested__ 30 to provide documentation to substantiate a claim for verifying applicability. 31 32 c:: Fee. There shall be no fee imposed by the City in connection with a. request 33 for reasonable accommodation under this section or an appeal of a determination on 34 such me uest to the Cit Commission. and the Cit. • shall have no obli * anon to .a: a 35 requesting part's, or an appealing part''s. as applicable. attorneys` fees or costs in 36 connection with the request, or an appeal. 37 38 I d. . City Assistance. The City shall provide such assistance and accommodation 39 ( as is required pursuant to FHA and ADA in connection with a disabled person's 40 request for reasonable accommodation. including. without limitation. assistance with with 41 reading application questions. responding to questions completing the form, filing an 42 appeal, and appearing at a hearing.. to ensure the process is accessible. 43 44 e. Findings for Reasonable Accommodation, C \Documents and Settings \pramttoj\Local Settings\Temporary Internet Fties \Content Outlook \7O3YJGDO \Ordinance - LDR Amendment Chapter 2 (ADA FHA)(2) doc 3 tt 1 2 j1), . In determining whether the reasonable accommodation request shall be 3 granted or denied, the requesting party shall be required to establish, that they 4 are protected under the FHA and/or ADA b demonstratin_ that the are 5 handicapped or disabled- as defined in the FI-I.A and /or ADA. Although the. 6 definition of disabi it is sus -ct udicial inte •retation. for •.0 •oses of this 7 ordinance the disabled individual must show; 8 (j) a physical or mental impairment which substantially limits one 10 or more major life actwtties__ 11 (ii) a record of having such impairment: or 12 viii) that they are regarded as haying such impairment. 13 14 (2) The, requesting party will then have to demonstrate that the proposed 15 accommodations sought by the gquesting party are reasonable and necessary 16 to _ afford handicapped and /or disabled persons equal opportunity to use. 17 and enjoy housing. 18 19 f 3) The foregoing (as judicially interpreted) shall be the basis for a decision 20 u.on a reasonable accommodation request made by the applicant to the 21 Planning & Zoning Director, or his /her designee, or by the Building Board of 22 Adjustment and Appeals in the event of an appeal, 23 24 f. Action by Appropriate City Official: A written determination shall be issued 25 by the Planning Director, or his or her designee, within forty -five (45) days of receipt 26 of an a. •lication determined to be sulfide t. :. 27 28 (l) If reasonably necessary to reach a determination on the request for 29 reasonable _accommodation. the Planning & Zoning Director, or his/her 30 ' designee, maN. prior to the end of said forty -five (45) day period. request 31 additional information from the requesting; party, specifying' in sufficient detail 32 what information is required 34 (2) The requesting party shall have fifteen (15) days after the date of the 35 request for additional information to.proy ide the requested information. in the, 36 event a request for additional information is made, the forty -five (45) day 37 period to issue a written determination shall no longer be applicable, and the 38 Planning & Zoning Director. or his/her designee. shall issue a written 39 determination ,yyithin thirty (30) days after receipt of the additional 40 , information. 41 42 (3). If the requesting party fails to provide the requested. additional 43 information within said fifteen (15) day period, the Planning & Zoning 44 Director, or his /her designee. shall issue a written notice advising that the C \Documents and Settings\pranutoj\Local Settmgs\Temporary Internet Fdes \Content Outlook \7OOYiODO \Ordinance - LDR Amendment Chapter 2 (ADA F1-IA)(2) doe 4 r t 1 requesting had tailed to timely submit the additional information and 2 therefore the request for reasonable accommodation shall be deemed abandoned and/or withdrawn and no further action by the Cite with regard to 4 ` said reasonable accommodation request shall be required... .:: . 6 g Notice of Pronosed .Decision. The Planning& Zoning_Director, or his /her 7 designee, shall have the authority to consider and act on requests for reasonable 8 accommodation. When a reasonable accommodation request form has been 9 completed and submitted to the Planning and Zoning Division, it will be referred to 10 the Planning & Zoning. Director. or his /her designee, for review and consideration. 11 The Planning & Zoning Director, or is /her desi _ ee shall issue a written 12 determination within forty-five (45) days of the date of receipt of a completed 13 application and may. in ccordancc; with federal aw: 14 15 1. *rant the accommodation re. uesr 16 a) grant a portion of the request and den% a portion of the request. and/or 17 impose conditions upon the grant of the request; or 18 (3) deny the request, in accordance with federal law. 19 20 Anv such denial shall be in writing and shall state the grounds therefore. All written, 21 determinations shall give notice of the right to appeal to the Building Board of 22 Adjustment and Appeals. The notice of determination shall be . sent to the requesting 23 warty, i.e. the disabled individual or his/her representative. by certified _mail, return 24 receipt requested_- 25 26. . h. Appeal. Within thirty (30) days after the. Planning & Zoning Director, or 27 his /her designee's, determination on a reasonable accommodation request is mailed to 28 the requesting party. such applicant may appeal the decision. All appeals shall contain 29 a statement containing sufficient detail ofthe grounds for the appeal. Appeals shall be 30 to the Building Board of Adjustment and Appeals which shall, after public notice to 31 the parties and a public hearing for appeal, render a written determination as soon as 32 '' reasonably practicable, but in no event later than sixty (60) days after an appeal has 33 been filed. The decision of the Building Board of Adjustment and Appeals shall be a 34 final determination, subject only to appeal by petition of certiorari to the Fifteenth 35 l5) Judicial Circuit Court, pursuant to all applicable local and state laws and 36 standards governing petitions for certiorari, 37 38 , Stay of Enforcement. While an application for reasonable accommodation,,or 39 ! anappeal of a determination of same. is pending before the City. the City will not 40 enforce the subject coning ordinance, rules. policies. and procedures against the 41 1 pp icant 42 43 .1, Request for Reasonable Accommodation. 44 , C'Documents and Settings \pratnitoj\Local Settings \Temporary Internet Fdes\ Content Outlool;1703YJQOO\Ordinance • I,DR Amendment Chapter 2 (ADA FHA)(2) doe. 5 II __ It 1 ;, a. Contents of Reasonable Accommodation Request Form. The contents of a 2 reasonable accommodation request form shall contain the following items, to. the 3 extent provided by law: 3 (1) Name and contact information of the applicant $. 2 Description of aro ert at which reasonable accommodation is 7 requested. including the address of such location; B (3) Description of the accommodation and the specific regulation(s) and/or procedure(s) from which accommodation is sought; 10 (4) Reasons . the accommodation may be necessary for the Applicant or the 11 individuals with disabilities seeking the specific accommodation. and if 12 relating to housing. whv the requested reasonable accommodation is necessary: 13 to use and enio■ the housing: 14 (5) Description of the qualifying, disability or handicap 15 1 (61 Other relevant information pertaining to the disability or property that 16 may be needed by the (it) in order for it to be able to evaluate the request for 17 reasonable accommodation. 18 (7) Signature of applicant; 19 8) Date of application. 20 21 4. Expiration of Approvals. Appro‘ als of requests for reasonable accommodation shall 22 expire within ne hundred eighty (180) da}s if not implemented, 23 24 26 Section 4. All prior ordinances or resolutions or parts thereof in conflict herewith are 26 hereby repealed to the extent of such conflict. 27 Section 5. If any section, sentence clause, or phrase of this Ordinance is held to be 28 invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no 29. way affect the validity of the remaining portions of this Ordinance. • C \Documents and Settings \pramrtoi \Locai Settings \Temporary Internet Files \Content Outlook\ 703YlGDp\Ordmance -1-1312 Amendment Chapter 2 (ADA FHA)(2) doc 6 FIRST READING this !iday of . Nov. , 2013. SECOND AND FINAL READING ADOPTED this Aa of 'Dec .• , 2013. CITY Off' BOYNTON BEACH, FLORIDA Mayor erry'.ylor 10 Vice Mayor Woodrow L. ay 1 1 , 1 Commi 'oner— avid T. - ker 1 ,, 1. 1 ! 1 1; missioner — Michael® Fitzpatric 1° 2e 2 , 2 C. missioner —Joe CaseIlo 2 ATTEST: 2• 2' 2. air 14,,,,. _' , 4 2 Jane M. Frainito, MMC 2 Clerk 2 3 CO 3 o S ICA\Ordmattces\LDR Changes\Ordmance - LDR Amendment Chapter 2 (ADA FHA)(I) doe 7 ATTACHMENT Part III. Land Development Regulations, Ch. 2, Art. I, Sec. 2.A Revised Table 2 -1 REVIEWING : PUBLIC CODE APPROVING APPLICATION TYPE AUTHORITY HEARING j SECTION ST AUTHORITY UIRED? ARTICLE IL PLANNING AND ZONING DIVISION SERVICES Standard Applications Annexation Art 11, Director of Section 2.A P &Z Comprehensive Plan Amendment Art I1, Text City Initiated Only Section 2.B.2 Future Land Use Map Art 1I, Director of Yes (FLUM Section 2 13.3 P&Z Conditional Use Art ]I, Section 2.0 Director of CC ( yes Conditional Use Time Art!!, P&Z Extension Section 2.C.6 ) Rezoning Art Il Section 2.E Master Plan (New) Article II, Section 2.E.7 CC Yes Article II, ■ , Director of Master Plan P &Z Modification (Major) Section 2.E.7.h Master Plan Article Il, Director of Modification (Minor) Section P &Z No 2 E. IS I Art II, Director of Director of Sign Program Section 2.F P &Z P &Z Site Plan (New) Art !1, Section 2.G i E Site Plan Time Art II, CC Yes Extension Section 2.G.6 Director of Site Plan Modification P &Z (Major) Art IL Site Plan Modification Section 2.G.7 Director of No P &Z Vacation and Art IL Director of Abandonment Section 2.H P&Z CC Yom ARTICLE II. PLANNING AND ZONING DIVISION SERVICES Planned Industrial Development (PID) Applications Master Site Plan (New) Art II, PID Zonis District Only Section 3.A CC 1 Master Site Plan Director of Y Modification, Major Art II, P &Z 1 Master Site Plan Section 3.A.7 Director of I No 1 Modification, Minor P&Z I Technical Site Plan (New) An II, Director of Director of PID Zoning District Onl Section 3.13 P &Z P&Z_ N. j II Technical Site Plan Modification, Major Art H, Technical Site Plan Section 3 B.6 Modification, Minor Art Ti, Director of Use Approval Section 3 .0 P &Z CC Yos Waiver Art II Director of Director of Yes Section 3.D. P &Z P &Z ARTICLE II. PLANNING AND ZONING DIVISION SERVICES Relief A. .lications Administrative Adjustment Art II, Director of Director of No Sec 4.A P&Z P &Z Art II, Director of Community Design Appeal Section 4.8 , P &Z CC Yes Art If, Director of Height Exception CC Yes Section 4.0 P &Z ...: r easonable i Art II, Director of Director of ccommo ano S cn ,-t- i t Z P &Z ariance to Land Art II, Director of CC Ye $ Development Regulations Section 4.D P &Z 4 ARTICLE II. PLANNING AND ZONING DIVISION SERVICES I Permit Applications C learing and Grubbing Art II, Director of Director of 'No Permit • Section 5.A P &Z P &Z II Art II, Director of Director of No Sign Permit Section 5:B P &Z P&Z Permit Secti Art o nI n , S.0 P Director & P &$ of I Dir of No ARTICLE II. PLANNING AND ZONING DIVISION SERVICES OtherA..lications Certificate of Conformity Art II, Director of Director of Na Section 6.A P&Z P &Z Art ll, Director of Mobile Vender Approval CC Section Section 6.B P&Z Art 11, Director of Sidewalk Cafe Approval No Section 6.D P &Z Wireless Communication Facilities New Tower Art II, Director of Co-location CC Revised Lease Section 6.E P &Z Au eement I ARTICLE III. ENGINEERING DIVISION SERVICES I Art III, Preliminary Plat Section 2 City Engineer City Engineer ! Ng. Art III, Final Plat Section 3 City Engineer CC Yes Land Development Permit ( Art III, City Engineer City Engineer ? NO (LDP Section 4 Construction (Engineering An III, City Engineer City Engineer No Plans Section 5 Right -of -Way Permits .. II I • $ Street Access Art tll, Section 6.A Work within the ROW Article ill Sec 6.B Street Opening Art III, �• Section 6.C, City Engineer City Engineer No Sidewalk Permit Art III, 1 Section 6.1). 7 Removal of Plant Art III, ' Material Section 6.E. Temporary Storage of Art III, I Construction Debris Section 6.F. Excavation. Permit Art [TT, City Engineer City Engineer No Section 7 Paving, Grading, and Art III, City Engineer 1 City Engineer j No Drainage Permit Section.8 Engineering Division Waivers Platting Art IV Section 9 A Right -of -Way Permit Art III Section 9.B City Engineer City Engineer i No 11 Excavation Permit Art 1I Section 9.0 Paving, Grading, and Art III, Drainage Section 9.D ARTLC t. ' \ • 4. :h Art IV, Building Building 11 Building Permit Section 2 Official Official No Irrigation Permit Art IV, I Director of Director of No Section 3 I P &Z P &Z Art IV, _ Building, Building a Newsrack Permit No Section 5 Official Official. Sign Permit Art IV, Building Building No ;....;. , , Official Section 6 & tfficial,_ ARTICLE VI. BUSINESS TAX SERVICES Seasonal Sales Event Art VI, Business Tax ` Business Tax No Approval Section 3 Mana:er Mana:,er Special Temporary Sales Art VI, i Business Tax Business Tax No Event A royal Section 4 Mana:er Mana_er II I I II ) N n n r O Z tn EXHIBIT "D" LAND DEVELOPMENT REGULATIONS CHAPTER 2, ARTICLE II, SECTION 4.F 1/27/2015 ARTICLE II. PLANNING AND ZONING DIVISION SERVICES demonstration that the subject request satisfies the intent of the review criteria contained herein. b. Applicability. The requested waiver shall be processed concurrent with the review of a master site plan unless otherwise determined by the Director of Planning and Zoning or designee. 0 The City Commission may waive or modify the requirements or standards that pertain to the following: (1) Building setbacks; (2) Drive aisle widths and parking dimensions; (3) Perimeter buffer widths; (4) Type and size of dwelling units; (5) Parking space requirements; (6) Internal landscape requirements; and (7) Other waivers to the following: 1) PID zoning regulations of Chapter 3, Article III, excluding maximum building height; and 2) any site development standard described in Chapter 4 as necessary to further economic development, affordable and workforce housing, sustainable development and green building initiatives, and to support the uses that are eligible for the Expedited Development Review Program in accordance with Chapter 2, Article I, Section 4. 2. Submittal Requirements. The applicant shall submit a letter that addresses the review criteria of Section 3.D.3. below, in addition to submitting any plans and exhibits required by the accompanying master site plan or technical site plan, whichever is applicable. 1 8 3. Review Criteria. The applicant shall justify each waiver request as part of the application for master site plan or master site plan modification. The applicant shall document the nature of the request, the extent of its departure from the standard regulation, and the basis for the request. The city may request additional information and documentation from the applicant, such as a shared - parking study, or other type of performance related analysis that further justifies the waiver request. 4. Approval Process. An application for waiver approval requires review by the City Commission and shall be processed in accordance with Chapter 2, Article I, Section 3. 5. Denial. Upon the denial of an application for relief hereunder, in whole or in part, a period of one (1) year must elapse prior to the filing of the same or similar application affecting the same property or any portion thereof; however, this restriction shall not apply to applications which further the city's economic development, workforce housing, or green building programs. 6. Expiration. A waiver shall remain valid as long as the corresponding master site plan or technical site plan approval remains in effect, or unless there is any amendment to the original waiver. Any amendment to the original approval shall require application for, and approval of, a new waiver. (Ord. 10 -025, passed 12 -7 -10; Am. Ord. 12 -010, passed 6- 19 -12) Sec. 4. Relief Applications. I/ Each application for relief shall be considered unique and not set precedent for subsequent requests. http: / /www.am I egal . com /al pscri pts /get- content.aspx 24/50 1/27/2015 ARTICLE II. PLANNING AND ZONING DIVISION SERVICES E. Waiver (Ocean Avenue Overlay Zone). 1. General. a. Purpose and Intent. The purpose of this subsection is to provide an efficient relief process to allow for deviations from certain requirements and standards of Chapter 3 and Chapter 4 as they pertain to the Ocean Avenue Overlay Zone (OAOZ). The intent of this application is not to provide a means for circumventing any such requirement or standard but to allow for a departure from the code upon demonstration that the subject request satisfies the intent of the review criteria contained herein. b. Applicability. For property located within the OAOZ, the waiver process shall be available for deviations from any development and design standards of Chapter 3, Article III, Section 8.D. 2. Submittal Requirements. The applicant shall submit a letter that addresses the review criteria of Section 3.E.3. below, in addition to submitting any plans and exhibits required by the accompanying site plan, whenever applicable. 3. Review Criteria. The applicant shall justify each waiver request as part of the application for site plan or site plan modification. The applicant shall document the nature of the request, the extent of its departure from the standard regulation, and the basis for the request. The City may request additional information and documentation from the applicant, such as a shared - parking study, or other type of performance related analysis that further justifies the waiver request. The burden of proof shall be on the applicant to present a superior design alternative and demonstrate that the application would further the purpose and intent of the OAOZ and not have any detrimental impact 8 on adjacent properties or the surrounding area. 4. Approval Process. A waiver request may be approved by staff if the subject request is reviewed concurrently with a minor site plan modification application, and such application requires administrative review pursuant to the review criteria of Section 2.F. above. Otherwise, the waiver application requires review by the City Commission and shall be processed in accordance with Chapter 2, Article 1, Section 3. 5. Denial. Upon the denial of an application for relief hereunder, in whole or in part, a period of one (1) year must elapse prior to the filing of the same or similar application affecting the same property or any portion thereof; however, this restriction shall not apply to applications which further the City's economic development, workforce housing, or green building programs. 6. Expiration. A waiver shall remain valid as long as the corresponding site plan or site plan modification approval remains in effect, or unless there is any amendment to the original waiver. Any amendment to the original approval shall require application for, and approval of, a new waiver. F. Requests for Accommodation. 1. General. I a. Purpose and Intent. The purpose of this section is to implement a procedure for processing requests for reasonable accommodation to the city's Code of Ordinances, Land Development Regulations, rules, policies, and procedures for persons with disabilities as provided by the federal Fair Housing Amendments Act (42 U.S.C. 3601. et. seq.) ( "FHA ") and/or Tide II of the Americans with Disabilities Amendments Act (42 U.S.C. Section 12131, et. seq.) ( "ADA "). http: //www.amlegal com/al pscri pts /get- content.aspx 31/50 1/27/2015 ARTICLE II. PLANNING AND ZONING DIVISION SERVICES b. Applicability. Any person who is disabled, or qualifying entities, may request a reasonable accommodation with respect to the city's Land Development Regulations, Code of Ordinances, rules, policies, practices and/or procedures as provided by the FHA and the ADA pursuant to the I procedures set out in this section. For purposes of this section, a "disabled person" is an individual that qualifies as disabled and/or handicapped under the FHA and/or ADA. The word "individual" shall include, for purposes of this section, multiple people, or qualified entities. c. Notice to the Public of Availability of Accommodation. The city shall endeavor to provide notice to the public, advising that a disabled person may request a reasonable accommodation. Such notice may include, but is not limited to, displaying a notice in the city's public notice bulletin board and to maintain copies available for review in the Planning and Zoning Division, the Building Division, and the City Clerk's Office upon request, and advising that the public disabled person may request a reasonable accommodation as provided herein. 2. Submittal Requirements. A request by an applicant for reasonable accommodation under this section shall be either oral or written. A written request may be submitted by completion of a reasonable accommodation request form, which form is maintained by (and shall be submitted to) the Planning and Zoning ( "P and Z ") Division of the Department of Development or other designee. The reasonable accommodation form shall contain such questions and requests for information as are necessary for processing the reasonable accommodation request. The reasonable accommodation request form shall be substantially in the form set forth in Subsection 3. below. The following considerations shall be applicable for any application, information or documentation required: a. Confidential Information. Should the information submitted by the disabled person to the city include medical information or records, including records indicating the medical condition, diagnosis, or medical history of the disabled person, such disabled person may, at the time of I submitting such medical information, request that the city, to the extent allowed by law, treat such medical information as confidential information of the disabled person The city shall thereafter endeavor to provide written notice to the disabled person and/or their representative, of any request received by the city for disclosure of the medical information or documentation which the disabled person has previously requested be treated as confidential by the city. The city will cooperate with the disabled person to the extent allowed by law, in actions initiated by such disabled person, to oppose the disclosure of such medical information or documentation, but the city shall have no obligation to initiate, prosecute or pursue any such action, or to incur any legal or other expenses (whether by retention of outside counsel or allocation of internal resources) in connection therewith, and may comply with any judicial order without prior notice to the disabled person. This section shall be subject to local, state, and federal revisions to privacy laws, including but not limited to the Health Insurance Portability and Accountability Act (HIPAA), as it may be amended from time to time. b. Address of Applicant /Address of Housing. Unless governed by 42 USC § 290dd, in which case the address shall not be required, the applicant may be requested to provide documentation to substantiate a claim for verifying applicability. c. Fee. There shall be no fee imposed by the city in connection with a request for reasonable accommodation under this section or an appeal of a determination on such request to the City Commission, and the city shall have no obligation to pay a requesting party's, or an appealing party's, as applicable, attorneys' fees or costs in connection with the request, or an appeal. d. City Assistance. The city shall provide such assistance and accommodation as is required pursuant to FHA and ADA in connection with a disabled person's request for reasonable accommodation, including, without limitation, assistance with reading application questions, http : / /www.amlegal.com /alpscripts /get- content.aspx 32/50 1/27/2015 ARTICLE II. PLANNING AND ZONING DIVISION SERVICES responding to questions, completing the form, filing an appeal, and appearing at a hearing, to ensure the process is accessible. e. Findings for Reasonable Accommodation. II (1) In determining whether the reasonable accommodation request shall be granted or denied, the requesting party shall be required to establish that they are protected under the FHA and/or ADA by demonstrating that they are handicapped or disabled, as defined in the FHA and/or ADA. Although the definition of disability is subject to judicial interpretation, for purposes of this section the disabled individual must show: (i) A physical or mental impairment which substantially limits one or more major life activities; (ii) A record of having such impairment; or (iii) That they are regarded as having such impairment. (2) The requesting party will then have to demonstrate that the proposed accommodations sought by the requesting party are reasonable and necessary to afford handicapped and/or disabled persons equal opportunity to use and enjoy housing. (3) The foregoing (as judicially interpreted) shall be the basis for a decision upon a reasonable accommodation request made by the applicant to the Planning and Zoning Director, or his/her designee, or by the Building Board of Adjustment and Appeals in the event of an appeal. f. Action by Appropriate City Official. A written determination shall be issued by the I Planning Director, or his or her designee. within forty-five (45) days of receipt of an application determined to be sufficient. (1) If reasonably necessary to reach a determination on the request for reasonable accommodation, the Planning and Zoning Director, or his /her designee, may, prior to the end of said forty-five (45) day period, request additional information from the requesting party, specifying in sufficient detail what information is required. (2) The requesting pam shall have fifteen (15) days after the date of the request for additional information to provide the requested information. In the event a request for additional information is made, the forty -five (45) day period to issue a written determination shall no longer I be applicable, and the Planning and Zoning Director, or his/her designee, shall issue a written determination within thirty (30) days after receipt of the additional information. (3) If the requesting party fails to provide the requested additional information within said fifteen (15) day period, the Planning and Zoning Director, or his/her designee, shall issue a written notice advising that the requesting party had failed to timely submit the additional information and therefore the request for reasonable accommodation shall be deemed abandoned and/or withdrawn and no further action by the city with regard to said reasonable accommodation request shall be required. g. Notice of Proposed Decision. The Planning and Zoning Director, or his/her designee, shall have the authority to consider and act on requests for reasonable accommodation. When a I reasonable accommodation request form has been completed and submitted to the Planning and Zoning Division, it will be referred to the Planning and Zoning Director, or his/her designee, for review and consideration. The Planning and Zoning Director, or his/her designee, shall issue a written determination within forty -five (45) days of the date of receipt of a completed application http: //www.am I egal.com /al pscri pts /get- content.aspx 33/50 1/27/2015 ARTICLE II. PLANNING AND ZONING DIVISION SERVICES and may, in accordance with federal law: (1) Grant the accommodation request; (2) Grant a portion of the request and deny a portion of the request, and/or impose conditions upon the grant of the request; or (3) Deny the request, in accordance with federal law. Any such denial shall be in writing and shall state the grounds therefore. All written determinations shall give notice of the right to appeal to the Building Board of Adjustment and Appeals. The notice of determination shall be sent to the requesting party, i.e. the disabled individual or his/her representative, by certified mail, return receipt requested. h. Appeal. Within thirty (30) days after the Planning and Zoning Director, or his/her designee's, determination on a reasonable accommodation request is mailed to the requesting party, such applicant may appeal the decision. All appeals shall contain a statement containing sufficient detail of the grounds for the appeal. Appeals shall be to the Building Board of Adjustment and Appeals which shall, after public notice to the parties and a public hearing for appeal, render a written determination as soon as reasonably practicable, but in no event later than sixty (60) days after an appeal has been filed. The decision of the Building Board of Adjustment and Appeals shall be a final determination, subject only to appeal by petition of certiorari to the Fifteenth (15th) Judicial Circuit Court, pursuant to all applicable local and state laws and standards governing petitions for certiorari. i. Stay of Enforcement. While an application for reasonable accommodation, or an appeal of a determination of same, is pending before the city, the city will not enforce the subject zoning 8 ordinance, rules, policies, and procedures against the applicant. 3. Request Form for Reasonable Accommodation. a. Contents of Reasonable Accommodation Request Form. The contents of a reasonable accommodation request form shall contain the following items, to the extent provided by law: (1) Name and contact information of the applicant; (2) Description of property at which reasonable accommodation is requested, including the ad dress of such location; (3) Description of the accommodation and the specific regulation(s) and /or procedure(s) 1 from which accommodation is sought; (4) Reasons the accommodation may be necessary for the applicant or the individuals with disabilities seeking the specific accommodation, and if relating to housing, why the requested reasonable accommodation is necessary to use and enjoy the housing; (5) Description of the qualifying disability or handicap; (6) Other relevant information pertaining to the disability or property that may be needed by the city in order for it to be able to evaluate the request for reasonable accommodation; (7) Signature of applicant; (8) Date of application. 4. Expiration of Approvals. Approvals of requests for reasonable accommodation shall expire http: / /www.am I egal.com /al pscri pts /get- content.aspx 34/50 1/27 /2015 ARTICLE II. PLANNING AND ZONING DIVISION SERVICES within one hundred eighty (180) days if not implemented. (Ord. 10 -025, passed 12 -7 -10; Am. Ord. 11 -002, passed 3 -1 -11; Am. Ord. 13 -033, § 3, passed 12 -3- 13) 8 Sec. 5. Permit Applications. A. Sign Permit. 1. General. a. Purpose and Intent. The purpose and intent of this subsection is to set forth well - defined application processes, review criteria, and uniform procedure to guide in the processing and review of sign permit applications to ensure compliance with the design objectives of Chapter 4, Article IV, Section 1.B. (i.e. identification, aesthetics, land values, safety, sustainability, and compatibility). b. Applicability. Excluding those signs and support structures exempt from the permitting requirements of the sign standards in accordance with Chapter 4, Article IV, Section 1.E., it shall be unlawful for any person to erect, construct, enlarge, move or convert any sign in the city, or cause the same to be done, without first obtaining a sign permit for each -such sign. These directives shall not be construed to require any permit for the cleaning, maintenance, or repair of a sign or sign structure for which a permit has previously been issued under this article, provided that such sign or structure is not modified in any way. Signs and structures supporting signs previously erected without a valid permit shall be in violation of this article and shall be deemed illegal signs. It shall be mandatory to obtain a permit for an illegal sign, or to immediately remove such sign and the structure supporting such sign upon notice that the sign or structure supporting the sign is illegal. I The notice shall contain a time period for removal. Signs and sign support structures shall be processed under a separate permit (in accordance with Chapter 2, Article IV, Section 3) if the Building Official determines that compliance with the Florida Building Code is required. 2. Submittal Requirements. See Section 1.D. above for the submittal requirements of this application. 3. Review Criteria. The sign permit shall comply with the sign standards of Chapter 4, Article IV. The Building Official shall make the determination as to whether a sign permit requires compliance with the Florida Building Code. In these instances, the sign permit shall be reviewed in accordance with the procedures described in Chapter 2, Article IV, Section 3. 4. Approval Process. The Director of Planning and Zoning or designee shall have three (3) days to review an application for a sign permit to ensure that it is complete. If an application is found to be incomplete, the Director of Planning and Zoning shall send a letter to the applicant indicating the noted deficiencies (with appropriate code references). Once an application is deemed to be complete, staff will promptly conduct a review of the application and within forty -five (45) days, the Director of Planning and Zoning or designee shall approve, approve with conditions, or deny the application for a sign permit. 5. Expiration. Any permit for a sign may be revoked by the city upon the determination that the sign is not in full compliance with the provisions of these Land Development Regulations or other applicable codes. A sign permit shall become null and void if the work is not complete within III ninety (90) days of the issuance of such permit. 6. Appeal. Any appeal of a decision made by a city official shall be conducted in accordance with Chapter 1, Article VIII, Section 1 (Appeals from an Administrative Official). http: / /www.am I egal.com /al pscri pts /get- content.aspx 35/50 I 3/3/2015 A Guide to Disability Rights Laws • U.S. Department of Justice Civil Rights Division =k r, frA Disability Rights Section > s� �. A Guide to Disability Rights Laws • July 2009 TABLE OF CONTENTS Americans with Disabilities Act Telecommunications Act Fair Housing Act • Air Carrier Access Act Voting Accessibility for the Elderly and Handicapped Act National Voter Registration Act http:// www .ada.gov /cguide.htm#anchor63409 1/15 3/312015 A Guide to Disability Rights Laws Civil Rights of Institutionalized Persons Act Individuals with Disabilities Education Act • Rehabilitation Act Architectural Barriers Act General Sources of Disability Rights Information Statute Citations For persons with disabilities, this document is available in large print, Braille, audio tape, and computer disk. Reproduction of this document is encouraged. • This guide provides an overview of Federal civil rights laws that ensure equal opportunity for people with disabilities. To find out more about how these laws may apply to you, contact the agencies and organizations listed below. Americans with Disabilities Act (ADA) The ADA prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications. It also applies to the United States Congress. To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name, all of the impairments that are covered ADA Title I: Employment qualified employers with 15 or more employees to provide fied • Title I requires p q individuals with disabilities an equal opportunity to benefit from the full range of employment - related opportunities available to others. For example, it in promotions, training, pay, in recruitment, hiring, discrimination g, p g, p Y, http:// www .ada.gov /cguide.htm #anchor63409 2/15 3/3/2015 A Guide to Disability Rights Laws activities, and other privileges of employment. It restricts questions that can be asked about an applicant's disability before a job offer is made, and it requires that employers make reasonable accommodation to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless it • results in and ue_hardship. Religious entities with 15 or more employees are covered under title I. Title I complaints must be filed with the U. S. Equal Employment Opportunity Commission (EEOC) within 180 days of the date of discrimination, or 300 days if the charge is filed with a designated State or local fair employment practice agency. Individuals may file a lawsuit in Federal court only after they receive a "right -to -sue" letter from the EEOC. Charges of employment discrimination on the basis of disability may be filed at any U.S. Equal Employment Opportunity Commission field office. Field offices are located in 50 cities throughout the U.S. and are listed in most telephone directories under "U.S. Government." For the appropriate EEOC field office in your geographic area, contact: (800) 669 -4000 (voice) (800) 669 -6820 (TTY) www.eeoc.gov Publications and information on EEOC- enforced laws may be obtained by • calling: (800) 669 -3362 (voice) (800) 800 -3302 (TTY) For information on how to accommodate a specific individual with a disability, tY, contact the Job Accommodation Network at: (800) 526 -7234 (voice) (800) 781 -9403 (TTY) http: / /askjan.org ADA Title II: State and Local Government Activities Title II covers all activities of State and local governments regardless of the government entity's size or receipt of Federal funding. Title II requires that State and local governments give people with disabilities an equal opportunity to benefit from all of their programs, services, and activities (e.g. public education, employment, transportation, recreation, health care, social services, courts, • voting, and town meetings). State and local governments are required to follow specific architectural standards in the new construction and alteration of their buildings. They also must relocate programs or otherwise provide access in inaccessible older http:// www . ada.gov /cguide.htm#anchor63409 3/15 3/3/2015 A Guide to Disability Rights Laws buildings, and communicate effectively with people who have hearing, vision, or speech disabilities. Public entities are not required to take actions that would result in undue financial and administrative burdens. They are required to make reasonable modifications to policies, practices, and procedures where necessary • to avoid discrimination, unless they can demonstrate that doing so would fundamentally alter the nature of the service, program, or activity being provided. Complaints of title II violations may be filed with the Department of Justice within 180 days of the date of discrimination. In certain situations, cases may be referred to a mediation program sponsored by the Department. The Department may bring a lawsuit where it has investigated a matter and has been unable to resolve violations. For more information, contact: U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Disability Rights Section - NYAV Washington, D.C. 20530 www.ada.gov (800) 514 -0301 (voice) (800) 514 -0383 (TTY) • Title II may also be enforced through private lawsuits in Federal court. It is not necessary to file a complaint with the Department of Justice (DOJ) or any other Federal agency, or to receive a "right -to -sue" letter, before going to court. ADA Title II: Public Transportation The transportation provisions of title II cover public transportation services, such as city buses and public rail transit (e.g. subways, commuter rails, Amtrak). Public transportation authorities may not discriminate against people with disabilities in the provision of their services. They must comply with requirements for accessibility in newly purchased vehicles, make good faith efforts to purchase or lease accessible used buses, remanufacture buses in an accessible manner, and, unless it would result in an undue burden, provide paratransit where they operate fixed -route bus or rail systems. Paratransit is a service where individuals who are unable to use the regular transit system independently (because of a physical or mental impairment) are picked up and dropped off at their destinations. Questions and complaints about public transportation should be directed to: Office of Civil Rights • Federal Transit Administration U.S. Department of Transportation 1200 New Jersey Avenue, Room E54 -427 Room 9102 http: / /www.ada.gov /cgui de.htm#anchor63409 4/15 3/3/,2015 A Guide to Disability Rights Laws Washington, D.C. 20590 www.fta.dot.gov /ada • (888) 446 -4511 (voice /relay) ADA Title III: Public Accommodations Title III covers businesses and nonprofit service providers that are public accommodations, privately operated entities offering certain types of courses and examinations, privately operated transportation, and commercial facilities. Public accommodations are private entities who own, lease, lease to, or operate facilities such as restaurants, retail stores, hotels, movie theaters, private schools, convention centers, doctors' offices, homeless shelters, transportation depots, zoos, funeral homes, day care centers, and recreation facilities including sports stadiums and fitness clubs. Transportation services provided by private entities are also covered by title III. Public accommodations must comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment. They also must comply with specific requirements related to architectural standards for new and altered buildings; reasonable modifications to policies, practices, and procedures; effective communication with people with hearing, vision, or speech disabilities; and other access requirements. Additionally, public • accommodations must remove barriers in existing buildings where it is easy to do so without much difficulty or expense, given the public accommodation's resources. Courses and examinations related to professional, educational, or trade- related applications, licensing, certifications, or credentialing must be provided in a place and manner accessible to people with disabilities, or alternative accessible arrangements must be offered. Commercial facilities, such as factories and warehouses, must comply with the ADA's architectural standards for new construction and alterations. Complaints of title III violations may be filed with the Department of Justice. In certain situations, cases may be referred to a mediation program sponsored by the Department. The Department is authorized to bring a lawsuit where there is a pattern or practice of discrimination in violation of title III, or where an act of discrimination raises an issue of general public importance. Title III may also be enforced through private lawsuits. It is not necessary to file a complaint with the Department of Justice (or any Federal agency), or to receive a "right -to -sue" letter, before going to court. For more information, contact: • U. S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Disability Rights Section - NYAV http: //www. ada .gov /cguide.htm#anchor63409 5/15 3/3/2015 A Guide to Disability Rights Laws Washington, D.C. 20530 www.ada.gov • (800) 514 -0301 (voice) (800) 514 -0383 (TTY) ADA Title IV: Telecommunications Relay Services Title IV addresses telephone and television access for people with hearing and speech disabilities. It requires common carriers (telephone companies) to establish interstate and intrastate telecommunications relay services (TRS) 24 hours a day, 7 days a week. TRS enables callers with hearing and speech disabilities who use TTYs (also known as TDDs), and callers who use voice telephones to communicate with each other through a third party communications assistant. The Federal Communications Commission (FCC) has set minimum standards for TRS services. Title IV also requires closed captioning of Federally funded public service announcements. For more information about TRS, contact the FCC at: Federal Communications Commission 445 12th Street, S.W. Washington, D.C. 20554 • www.fcc.gov /cgb /dro (888) 225 -5322 (Voice) (888) 835 -5322 (TTY) Telecommunications Act Section 255 and Section 251(a)(2) of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, require manufacturers of telecommunications equipment and providers of telecommunications services to ensure that such equipment and services are accessible to and usable by persons with disabilities, if readily achievable. These amendments ensure that people with disabilities will have access to a broad range of products and services such as telephones, cell phones, pagers, call- waiting, and operator services, that were often inaccessible to many users with disabilities. For more information, contact: Federal Communications Commission • 445 12th Street, S.W. Washington, D.C. 20554 www.fcc.gov /cgb /dro http:// www .ada.gov /cguide.htm #anchor63409 6/15 3/3/2015 A Guide to Disability Rights Laws (888) 225 -5322 (Voice) (888) 835 -5322 (TTY) • Fair Housing Act The Fair Housing Act, as amended in 1988, prohibits housing discrimination on the basis of race, color, religion, sex, disability, familial status, and national origin. Its coverage includes private housing, housing that receives Federal financial assistance, and State and local government housing. It is unlawful to discriminate in any aspect of selling or renting housing or to deny a dwelling to a buyer or renter because of the disability of that individual, an individual associated with the buyer or renter, or an individual who intends to live in the residence. Other covered activities include, for example, financing, zoning practices, new construction design, and advertising. The Fair Housing Act requires owners of housing facilities to make reasonable exceptions in their policies and operations to afford people with disabilities equal housing opportunities. For example, a landlord with a "no pets" policy may be required to grant an exception to this rule and allow an individual who is blind to keep a guide dog in the residence. The Fair Housing Act also requires landlords to allow tenants with disabilities to make reasonable access - related modifications to their private living space, as well as to common use spaces. • (The landlord is not required to pay for the changes.) The Act further requires that new multifamily housing with four or more units be designed and built to allow access for persons with disabilities. This includes accessible common use areas, doors that are wide enough for wheelchairs, kitchens and bathrooms that allow a person using a wheelchair to maneuver, and other adaptable features within the units. Complaints of Fair Housing Act violations may be filed with the U.S. Department of Housing and Urban Development. For more information or to file a complaint, contact: Office of Compliance and Disability Rights Division Office of Fair Housing and Equal Opportunity U.S. Department of Housing and Urban Development 451 7th Street, S.W. , Room 5242 Washington, D.C. 20410 www.hud.gov /offices /theo (800) 669 -9777 (voice) (800) 927 -9275 (TTY) • For questions about the accessibility provisions of the Fair Housing Act, contact Fair Housing FIRST at: www.fairhousingfirst.org http:// www .ada.gov /cguide.htm #anchor63409 7/15 3/3/2015 A Guide to Disability Rights Laws (888) 341 -7781 (voice /TTY) For publications, you may call the Housing and Urban Development Customer Service Center at: • (800) 767 -7468 (voice /relay) Additionally, the Department of Justice can file cases involving a pattern or practice of discrimination. The Fair Housing Act may also be enforced through private lawsuits. Air Carrier Access Act The Air Carrier Access Act prohibits discrimination in air transportation by domestic and foreign air carriers against qualified individuals with physical or mental impairments. It applies only to air carriers that provide regularly scheduled services for hire to the public. Requirements address a wide range of issues including boarding assistance and certain accessibility features in newly built aircraft and new or altered airport facilities. People may enforce rights under the Air Carrier Access Act by filing a complaint with the U.S. Department of Transportation, or by bringing a lawsuit in Federal court. For more information or to file a complaint, contact: • Aviation Consumer Protection Division, C -75 U.S. Department of Transportation 1200 New Jersey Avenue, S.E. Washington, D.C. 20590 http://airconsumer.ost.dot.gov (202) 366 -2220 (voice) (202) 366 -0511 (TTY) (800) 778 -4838 (voice) (800) 455 -9880 (TTY) Voting Accessibility for the Elderly and Handicapped Act The Voting Accessibility for the Elderly and Handicapped Act of 1984 generally requires polling places across the United States to be physically accessible to people with disabilities for federal elections. Where no accessible location is available to serve as a polling place, a political subdivision must • provide an alternate means of casting a ballot on the day of the election. This law also requires states to make available registration and voting aids for disabled and elderly voters, including information by TTYs (also known as TDDs) or similar devices. For more information, contact: http: / /www.ada .gov /cguide.htm#anchor63409 8/15 3/3/2015 A Guide to Disability Rights Laws U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Voting Section - 1800 G • Washington, D.C. 20530 (800) 253 -3931 (voice /TTY) National Voter Registration Act The National Voter Registration Act of 1993, also known as the "Motor Voter Act," makes it easier for all Americans to exercise their fundamental right to vote. One of the basic purposes of the Act is to increase the historically low registration rates of minorities and persons with disabilities that have resulted from discrimination. The Motor Voter Act requires all offices of State - funded programs that are primarily engaged in providing services to persons with disabilities to provide all program applicants with voter registration forms, to assist them in completing the forms, and to transmit completed forms to the appropriate State official. For more information, contact: U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. • Voting Section - 1800 G Washington, D.C. 20530 www.usdoj.gov/crt/voting (800) 253 -3931 (voice /TTY) Civil Rights of Institutionalized Persons Act The Civil Rights of Institutionalized Persons Act (CRIPA) authorizes the U.S. Attorney General to investigate conditions of confinement at State and local government institutions such as prisons, jails, pretrial detention centers, juvenile correctional facilities, publicly operated nursing homes, and institutions for people with psychiatric or developmental disabilities. Its purpose is to allow the Attorney General to uncover and correct widespread deficiencies that seriously jeopardize the health and safety of residents of institutions. The Attorney General does not have authority under CRIPA to investigate isolated incidents or to represent individual institutionalized persons. • The Attorney General may initiate civil law suits where there is reasonable cause to believe that conditions are "egregious or flagrant," that they are subjecting residents to "grievous harm," and that they are part of a "pattern or practice" of resistance to residents' full enjoyment of constitutional or Federal rights, including title II of the ADA and section 504 of the Rehabilitation Act. http:// www .ada.gov /cguide.htm#anchor63409 9/15 3/3/2015 A Guide to Disability Rights Laws For more information or to bring a matter to the Department of Justice's attention, contact: U.S. Department of Justice • Civil Rights Division 950 Pennsylvania Avenue, N.W. Special Litigation Section - PHB Washington, D.C. 20530 www.usdoj.gov/crt/split (877) 218 -5228 (voice /TTY) Individuals with Disabilities Education Act The Individuals with Disabilities Education Act (IDEA) (formerly called P.L. 94 -142 or the Education for all Handicapped Children Act of 1975) requires public schools to make available to all eligible children with disabilities a free appropriate public education in the least restrictive environment appropriate to their individual needs. IDEA requires public school systems to develop appropriate Individualized Education Programs (IEP's) for each child. The specific special education and • related services outlined in each IEP reflect the individualized needs of each student. IDEA also mandates that particular procedures be followed in the development of the IEP. Each student's IEP must be developed by a team of knowledgeable persons and must be at least reviewed annually. The team includes the child's teacher; the parents, subject to certain limited exceptions; the child, if determined appropriate; an agency representative who is qualified to provide or supervise the provision of special education; and other individuals at the parents' or agency's discretion. If parents disagree with the proposed IEP, they can request a due process hearing and a review from the State educational agency if applicable in that state. They also can appeal the State agency's decision to State or Federal court. For more information, contact: Office of Special Education and Rehabilitative Services U.S. Department of Education 400 Maryland Avenue, S.W. Washington, D.C. 20202 -7100 • www.ed. gov /about/offices /list/osers /osep (202) 245 -7468 (voice /TTY) http:// www .ada.gov /cguide.htm#anchor63409 10/15 3/3/2015 A Guide to Disability Rights Laws Rehabilitation Act • The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in title I of the Americans with Disabilities Act. Section 501 Section 501 requires affirmative action and nondiscrimination in employment by Federal agencies of the executive branch. To obtain more information or to file a complaint, employees should contact their agency's Equal Employment Opportunity Office. Section 503 Section 503 requires affirmative action and prohibits employment discrimination by Federal government contractors and subcontractors with contracts of more than $10,000. For more information on section 503, contact: 1111 Office of Federal Contract Compliance Programs U.S. Department of Labor 200 Constitution Avenue, N.W. Room C -3325 Washington, D.C. 20210 www.dol.gov /ofccp /index.htm (202) 693 -0106 (voice /relay) Section 504 Section 504 states that "no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under" any program or activity that either receives Federal financial assistance or is conducted by any Executive agency or the United States Postal Service. Each Federal agency has its own set of section 504 regulations that apply to its own programs. Agencies that provide Federal financial assistance also have section 504 regulations covering entities that receive Federal aid. Requirements • common to these regulations include reasonable accommodation for employees with disabilities; program accessibility; effective communication with people who have hearing or vision disabilities; and accessible new construction and alterations. Each agency is responsible for enforcing its own regulations. Section 504 may also be enforced through private lawsuits. It is not necessary to http:// www .ada.gov /cguide.htm#anchor63409 11/15 3/3/2015 A Guide to Disability Rights Laws file a complaint with a Federal agency or to receive a "right -to -sue" letter before going to court. For information on how to file 504 complaints with the appropriate agency, • contact: U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Disability Rights Section - NYAV Washington, D.C. 20530 www.ada.gov (800) 514 -0301 (voice) (800) 514 -0383 (TTY) Section 508 Section 508 establishes requirements for electronic and information technology developed, maintained, procured, or used by the Federal government. Section 508 requires Federal electronic and information technology to be accessible to people with disabilities, including employees and members of the public. An accessible information technology system is one that can be operated in a • variety of ways and does not rely on a single sense or ability of the user. For example, a system that provides output only in visual format may not be accessible to people with visual impairments and a system that provides output only in audio format may not be accessible to people who are deaf or hard of hearing. Some individuals with disabilities may need accessibility- related software or peripheral devices in order to use systems that comply with Section 508. For more information on section 508, contact: U.S. General Services Administration Office of Government -wide Policy IT Accessiblity & Workflow Division (ITAW) 1800 F Street, N.W. Room 2222 - MEC:ITAW Washington, DC 20405 -0001 www.gsa.goviportal/content/105254 (202) 501 -4906 (voice) U.S. Architectural and Transportation Barriers Compliance Board 1331 F Street, N.W., Suite 1000 • Washington, DC 20004-1111 www.access- board.gov 800 - 872 -2253 (voice) http:// www .ada.gov /cguide.htm #anchor63409 12/15 3/3/2015 A Guide to Disability Rights Laws 800 - 993 -2822 (TTY) • Architectural Barriers Act The Architectural Barriers Act (ABA) requires that buildings and facilities that are designed, constructed, or altered with Federal funds, or leased by a Federal agency, comply with Federal standards for physical accessibility. ABA requirements are limited to architectural standards in new and altered buildings and in newly leased facilities. They do not address the activities conducted in those buildings and facilities. Facilities of the U.S. Postal Service are covered by the ABA. For more information or to file a complaint, contact: U.S. Architectural and Transportation Barriers Compliance Board 1331 F Street, N.W., Suite 1000 Washington, D.C. 20004 -1111 www.access-board.gov (800) 872 -2253 (voice) (800) 993 -2822 (TTY) General Sources of Disability Rights Information • ADA Information Line (800) 514 -0301 (voice) (800) 514 -0383 (TTY) www.ada.gov Regional Disability and Business Technical Assistance Centers (800) 949 -4232 (voice /TTY) www.adata.org Statute Citations Air Carrier Access Act of 1986 49 U.S.C. § 41705 Implementing Regulation: • 14 CFR Part 382 Americans with Disabilities Act of 1990 42 U.S.C. §§ 12101 et seq. http.//www.ada.gov/cguide.htm#anchor63409 13/15 3/3/2015 A Guide to Disability Rights Laws Implementing Regulations: 29 CFR Parts 1630, 1602 (Title I, EEOC) 28 CFR Part 35 (Title II, Department of Justice) 49 CFR Parts 27, 37, 38 (Title II, III, Department of Transportation) • 28 CFR Part 36 (Title III, Department of Justice) 47 CFR §§ 64.601 et seq. (Title IV, FCC) Architectural Barriers Act of 1968 42 U.S.C. §§ 4151 et seq. Implementing Regulation: 41 CFR Subpart 101 -19.6 Civil Rights of Institutionalized Persons Act 42 U.S.C. §§ 1997 et seq. Fair Housing Amendments Act of 1988 42 U.S.C. §§ 3601 et seq. Implementing Regulation: 24 CFR Parts 100 et seq. Individuals with Disabilities Education Act 20 U.S.C. §§ 1400 et seq. Implementing Regulation: • 34 CFR Part 300 National Voter Registration Act of 1993 42 U.S.C. §§ 1973gg et seq. Section 501 of the Rehabilitation Act of 1973, as amended 29 U.S.C. § 791 Implementing Regulation: 29 CFR § 1614.203 Section 503 of the Rehabilitation Act of 1973, as amended 29 U.S.C. § 793 Implementing Regulation: 41 CFR Part 60 -741 Section 504 of the Rehabilitation Act of 1973, as amended 29 U.S.C. § 794 Over 20 Implementing Regulations for federally assisted programs, including: • 34 CFR Part 104 (Department of Education) 45 CFR Part 84 (Department of Health and Human Services) 28 CFR §§ 42.501 et seq. http: //www.ada.gov/cguide.htm#anchor63409 14/15 3/3/2015 A Guide to Disability Rights Laws Over 95 Implementing Regulations for federally conducted programs, including: 28 CFR Part 39 (Department of Justice) • Section 508 of the Rehabilitation Act of 1973, as amended 29 U.S.C. § 794d Telecommunications Act of 1996 47 U.S.C. §§ 255, 251(a)(2) Voting Accessibility for the Elderly and Handicapped Act of 1984 42 U.S.C. §§ 1973ee et seq. April 9, 2012 • • http:// www .ada.gov /cguide.htm #anchor63409 15/15 3/3/2015 42 U.S. Code § 12102 - Definition of thsability 1 LII / Legal Information Institute r -i� ®0 ( https: / /www.cornell.edu)Cornell University Law School ( http : / /www.lawschool.cornell.edu /)Search Cornell • (https: / /www.cornell.edu /search /) U.S. Code ( /uscode /text) > Title 42 ( /uscode /text /42) > Chapter 126 ( /uscode /text/42 /chapter -126) > § 12102 Current through Pub. L. 113 -296 ( http: / /www. gpo .gov /fdsys /pkg /PLAW- 113pub1296 /html /PLAW- 113pub1296.htm), except 113 -287 (http: / /www. gpo. gov / fdsys /pkg /PLAW- 113pub1287 /html /PLAW- 113pub1287.htm), 113 -291 (http: / /www.gpo.gov /fdsys /pkg /PLAW- 113pub1291 /html /PLAW- 113pub1291.htm), 113 -295 (http: / /www. gpo. gov / fdsys / pkg / PLAW- 113pub1295 /html /PLAW- 113pub1295.htm). (See Public Laws for the current Congress (http: / /thomas.loc.gov/ home / LegislativeData .php ?n = PublicLaws).) US Code ( /uscode/ text /42/ 12102 ?qt -us_ code_ temp_ noupdates= 0 #qt- us_code_temp_noupdates) Notes ( /uscode/ text /42/ 12102 ?qt -us_ code_ temp_ noupdates= 1 #qt- us_code_temp_noupdates) Authorities (CFR) ( /uscode/ text /42/ 12102 ?qt -us_ code_ temp_ noupdates= 3 #qt- us_code_temp_noupdates) prey ( /uscode /text/42/12101) 1 next ( /uscode /text/42/12103) As used in this chapter: (1) Disability The term "disability" means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3)). • (2) Major life activities (A) In general For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. (B) Major bodily functions For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. (3) Regarded as having such an impairment For purposes of paragraph (1)(C): (A) An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. (B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less. • (4) Rules of construction regarding the definition of disability The definition of "disability" in paragraph (1) shall be construed in accordance with the following: (A) The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter. https:// www. Iaw. cornell .edu/uscode/text/42/12102 O - 1/4 3/3/2015 42 U.S. Code § 12102 - Definition of disability I LII / Legal Information Institute (B) The term "substantially limits" shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008. (C) An impairment that substantially limits one major life activity need not limit other major life activities in order • to be considered a disability. (D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. (E) (i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as— (1) medication, medical supplies, equipment, or appliances, low- vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (11) use of assistive technology; (111) reasonable accommodations or auxiliary aids or services; or (IV) learned behavioral or adaptive neurological modifications. (ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity. (iii) As used in this subparagraph — (1) the term "ordinary eyeglasses or contact lenses" means lenses that are intended to fully correct visual acuity or eliminate refractive error; and (11) the term "low- vision devices" means devices that magnify, enhance, or otherwise augment a visual • image. Lll has no control over and does not endorse any external Internet site that contains links to or references Lll. U.S. Code Toolbox Law about... Articles from Wex ( /wex/wex_articles) Download the PDF (2 pgs) (https: / /www.law.cornell.ed u /uscode /pdf /uscod e42 /Iii_u sc_TI_42_CH_126_SE_12102. pdf) Title 42 USC, RSS Feed F :J (https: / /www. law. cornell. edu /uscode /rss /usc_update_42.rss) Table of Popular Names ( /topn) Parallel Table of Authorities ( /ptoa) g +1 o Related bills now in Congress • 113 H. R. 3979 (https: // beta. congress.gov /bill /113th- congress /house- bill/3979) : military, defense, department, • activities, year • 113 H. 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(http: / /lawyers.law.cornell. edu /lawyer /eric - nissim - assouline- 1246753) Eric Nissim Assouline (http: // lawyers. law. cornell. edu /lawyer /eric - nissim- assouline- 1246753) Bankruptcy, Business Law, Intellectual Property, Real Estate Law Dania Beach, FL • silver Badge i ii (http: / /lawyers.law.cornell .edu /lawyer /jo- ann- hoffman -esq- 549781) Jo Ann Hoffman Esq. (http: / /lawyers.law.cornell.edu /lawyer /jo- ann- hoffman -esq- 549781) https: //www. law. cornell .edu /uscode/text/42/12102 3/4 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities 41L AGENCY: Department of Justice, Civil Rights Division. ACTION: Final rule. SUMMARY: This final rule revises the Department of Justice (Department) regulation that implements title III of the Americans with Disabilities Act (ADA), relating to nondiscrimination on the basis of disability by public accommodations and in commercial facilities. The Department is issuing this final rule in order to adopt enforceable accessibility standards under the Americans with Disabilities Act of 1990 (ADA) that are consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board, and to update or amend certain provisions of the title III regulation so that they comport with the Department's legal and practical experiences in enforcing the ADA since 1991. Concurrently with the publication of the final rule for title III, the Department is publishing a final rule amending its ADA title II regulation, which covers nondiscrimination on the basis of disability in State and local government services. DATES: Effective Date: March 15, 2011. FOR FURTHER INFORMATION CONTACT: Janet L. Blizard, Deputy Chief, or Christina Galindo - Walsh, Attorney Advisor, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, at (202) 307 -0663 (voice or TTY). This is not a toll -free number. Information may also be obtained from the Department's toll -free ADA Information Line at (800) 514 -0301 (voice) or (800) 514 -0383 (TTY). This rule is also available in an accessible format on the ADA Home Page at http: / /www.ada.gov. You may obtain copies of this rule in large print or on computer disk by calling the ADA Information Line listed above. SUPPLEMENTARY INFORMATION: The Roles of the Access Board and the Department of Justice The Access Board was established by section 502 of the Rehabilitation Act of 1973.29 U.S.C. 792. The Board consists of 13 public members appointed by the President, the majority of whom must be individuals with disabilities, and the heads of 12 Federal departments and agencies specified by statute, including the heads of the Department of Justice and the Department of Transportation (DOT). Originally, the Access Board was established to develop and maintain accessibility guidelines for P � ) facilities designed, constructed, altered, or leased with Federal dollars under the Architectur al Barriers Act of 1968 (ABA). 42 U.S.C. 4151 et seq The passage of the ADA expanded the Access Board's responsibilities. The ADA requires the Access Board to "issue minimum guidelines that shall supplement the existing Minimum Guidelines and Requirements for Accessible Design for purposes of subchapters II and III of this chapter * * * to ensure that buildings, facilities, rail passenger cars, and vehicles are accessible, in terms of architecture and design, transportation, and communication, to individuals with disabilities." 42 U.S.C. 12204. The ADA requires the Department to issue regulations that include enforceable accessibility standards applicable to facilities subject to title II or title III that are consistent with the "minimum guidelines" issued by the Access Board, 42 U.S.C. 12134(c), 12186(c), but vests in the Attorney General sole responsibility for the promulgation of those standards that fall within the Department's jurisdiction and enforcement of the regulations. The ADA also requires the Department to develop regulations with respect to existing facilities subject to title II (Subtitle A) and title III. How and to what extent the Access Board's guidelines are used with respect to the barrier removal requirement applicable to existing facilities under title III of the ADA and to the provision of program accessibility under title II of the ADA are solely within the discretion of the Department. Enactment of the ADA and Issuance of the 1991 Regulations On July 26, 1990, President George H.W. Bush signed into law the ADA, a comprehensive civil rights law prohibiting discrimination on the basis of disability.1 The ADA broadly protects the rights of individuals with disabilities in employment, access to State and local government services, places of public accommodation, transportation, and other important areas of American life. The ADA also requires newly designed and constructed or altered State and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. 12101 et seq. Section 306(a) of the ADA directs the Secretary of Transportation to issue regulations for demand responsive or fixed route systems operated by private entities not primarily engaged in the business of transporting people (sections 302(b) (2)(B) and (C)) and for private entities that are primarily engaged in the business of transporting people (section 304). See 42 http: //www.ada.gov /regs2010/title1l1 2010/titielll 2010 regulations.htm#a201 0' 3/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities U.S.C. 12182(b), 12184, 12186(a). Section 306(b) directs the Attorney General to promulgate regulations to carry out the 41 J1 provisions of the rest of title III. 42 U.S.C. 12186(b). Title II applies to State and local government entities, and, in Subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. Title II extends the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section 504), to all activities of State and local governments regardless of whether these entities receive Federal financial assistance. 42 U.S.C. 12131 -65. Title III, which this rule addresses, prohibits discrimination on the basis of disability in the activities of places of public accommodation (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors' offices) and requires newly constructed or altered places of public accommodation —as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings) —to comply with the ADA Standards. 42 U.S.C. 12181 -89. On July 26, 1991, the Department issued rules implementing title II and title III, which are codified at 28 CFR part 35 (title II) and part 36 (title III). Appendix A of the 1991 title III regulation, which is republished as Appendix D to 28 CFR part 36, contains the ADA Standards for Accessible Design (1991 Standards), which were based upon the version of the Americans with Disabilities Act Accessibility Guidelines (1991 ADAAG) published by the Access Board on the same date. Under the Department's 1991 title III regulation, places of public accommodation and commercial facilities currently are required to comply with the 1991 Standards with respect to newly constructed or altered facilities. The Access Board's publication of the 2004 ADA/ABA Guidelines was the culmination of a long -term effort to facilitate ADA compliance by eliminating, to the extent possible, inconsistencies among Federal accessibility requirements and between Federal accessibility requirements and State and local building codes. In support of this effort, the Department is amending its regulation implementing title III and adopting standards consistent with ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines. The Department is also amending its title II regulation, which prohibits discrimination on the basis of disability in State and local government services, concurrently with the publication of this rule in this issue of the Federal Register. Development of the 2004 ADA/ABA Guidelines In 1994, the Access Board began the process of updating the 1991 ADAAG by establishing an advisory committee composed of members of the design and construction industry, the building code community, and State and local government entities, as well as individuals with disabilities. In 1998, the Access Board added specific guidelines on State and local government facilities, 63 FR 2000 (Jan. 13, 1998), and building elements designed for use by children, 63 FR 2060 (Jan. 13, 1998). In 1999, based largely on the report and recommendations of the advisory committee, the Access Board issued a notice of proposed rulemaking (NPRM) to update and revise its ADA and ABA Accessibility Guidelines. See 64 FR 62248 (Nov. 16, 1999). In 2000, the Access Board added specific guidelines on play areas. See 65 FR 62498 (Oct. 18, 2000). The Access Board released an interim draft of its guidelines to the public on April 2, 2002, 67 FR 15509, in order to provide an opportunity for entities with model codes to consider amendments that would promote further harmonization. In September of 2002, the Access Board set forth specific guidelines on recreation facilities. 67 FR 56352 (Sept. 3, 2002). By the date of its final publication on July 23, 2004, the 2004 ADA/ABA Guidelines had been the subject of extraordinary review and public participation. The Access Board received more than 2,500 comments from individuals with disabilities, affected industries, State and local governments, and others. The Access Board provided further opportunity for participation by holding public hearings. The Department was involved extensively in the development of the 2004 ADA/ABA Guidelines. As a Federal member of the Access Board, the Attorney General's representative voted to approve the revised guidelines. ADA Chapter 1 and ADA Chapter 2 of the 2004 ADA/ABA Guidelines provide scoping requirements for facilities subject to the ADA; "scoping" is a term used in the 2004 ADA/ABA Guidelines to describe requirements that prescribe which elements and spaces —and, in some cases, how many —must comply with the technical specifications. ABA Chapter 1 and ABA Chapter 2 provide scoping requirements for facilities subject to the ABA (i.e., facilities designed, built, altered, or leased with Federal funds). Chapters 3 through 10 of the 2004 ADA/ABA Guidelines provide uniform technical specifications for facilities subject to either the ADA or the ABA. This revised format is designed to eliminate unintended conflicts between the two sets of Federal accessibility standards and to minimize conflicts between the Federal regulations and the model codes that form the basis of many State and local building codes. For the purposes of this final rule, the Department will refer to ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as the 2004 ADAAG. These amendments to the 1991 ADAAG have not been adopted previously by the Department as ADA Standards. Through this rule, the Department is adopting revised ADA Standards consistent with the 2004 ADAAG, including all of the amendments to the 1991 ADAAG since 1998. For the purposes of this part, the Department's revised standards are entitled http : //www.ada.gov /regs2010 /titie111 2010 /title!!! 2010_regulations.htm#a201 4/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities "The 2010 Standards for Accessible Design" and consist of the 2004 ADAAG and the requirements contained in subpart D of 28 CFR part 36. Because the Department has adopted the 2004 ADAAG as part of its title II and title III regulations, once the Department's final rules become effective, the 2004 ADAAG will have legal effect with respect to the Department's title II and title III regulations and will cease to be mere guidance for those areas regulated by the Department. In 2006, DOT adopted the 2004 ADAAG. With respect to those areas regulated by DOT, these guidelines, as adopted by DOT, have had legal effect since 2006. Under this regulation, the Department of Justice covers passenger vessels operated by private entities not primarily engaged in the business of transporting people with respect to the provision of goods and services of a public accommodation on the vessel. For example, a vessel operator whose vessel departs from Point A, takes passengers on a recreational trip, and returns passengers to Point A without ever providing for disembarkation at a Point B (e.g., a dinner or harbor cruise, a fishing charter) is a public accommodation operated by a private entity not primarily engaged in the business of transporting people. This regulation covers those aspects of the vessel's operation relating to the use and enjoyment of the public accommodation, including, for example, the boarding process, safety policies, accessible routes on the vessel, and the provision of effective communication. Persons with complaints or concerns about discrimination on the basis of disability by vessel operators who are private entities not primarily engaged in the business of transporting people, or questions about how this regulation applies to such operators and vessels, should contact the Department of Justice. Vessels operated by private entities primarily engaged in the business of transporting people and that provide the goods and services of a public accommodation are covered by this regulation and the Department of Transportation's passenger vessel rule, 49 CFR part 39. A vessel operator whose vessel takes passengers from Point A to Point B (e.g., a cruise ship that sails from Miami to one or more Caribbean islands, a private ferry boat between two points on either side of a river or bay, a water taxi between two points in an urban area) is most likely a private entity primarily engaged in the business of transporting people. Persons with questions about how this regulation applies to such operators and vessels may contact the Department of Justice or the Department of Transportation for guidance or further information. However, the Department of Justice has enforcement authority for all private entities under title III of the ADA, so individuals with complaints about noncompliance with part 39 should provide those complaints to the Department of Justice. The provisions of this rule and 49 CFR part 39 are intended to be substantively consistent with one another. Consequently, in interpreting the application of this rule to vessel operators who are private entities not primarily engaged in the business of transporting people, the Depai tment of Justice views the obligations of those vessel operators as being similar to those of private entities primarily engaged in the business of transporting people under the provisions of 49 CFR part 39. The Department's Rulemaking History The Department published an advance notice of proposed rulemaking (ANPRM) on September 30, 2004, 69 FR 58768 for two reasons: (1) To begin the process of adopting the 2004 ADAAG by soliciting public input on issues relating to the potential application of the Access Board's revisions once the Department adopts them as revised standards; and (2) to request background information that would assist the Department in preparing a regulatory analysis under the guidance provided in Office of Management and Budget (OMB) Circular A-4 sections D (Analytical Approaches) and E (Identifying and Measuring Benefits and Costs) (Sept. 17, 2003), available at http: / /www.whitehouse.gov /OMB /circulars /x004 /a -4.pdf (last visited June 24, 2010). While underscoring that the Department, as a member of the Access Board, already had reviewed comments provided to the Access Board during its development of the 2004 ADAAG, the Department specifically requested public comment on the potential application of the 2004 ADAAG to existing facilities. The extent to which the 2004 ADAAG is used with respect to the barrier removal requirement applicable to existing facilities under title III (as well as with respect to the program access requirement in title II) is within the sole discretion of the Department. The ANPRM dealt with the Department's responsibilities under both title II and title III. The public response to the ANPRM was substantial. The Department extended the comment deadline by four months at the public's request. 70 FR 2992 (Jan. 19, 2005). By the end of the extended comment period, the Department had received more than 900 comments covering a broad range of issues. Many of the commenters responded to questions posed specifically by the Department, including questions regarding the Department's application of the 2004 ADAAG once adopted by the Department and the Department's regulatory assessment of the costs and benefits of particular elements. Many other commenters addressed areas of desired regulation or of particular concern. To enhance accessibility strides made since the enactment of the ADA, commenters asked the Department to focus on previously unregulated areas, such as ticketing in assembly areas; reservations for hotel rooms, rental cars, and boat slips; and captioning. They also asked for clarification on some issues in the 1991 regulations, such as the requirements regarding service animals. Other commenters dealt with specific requirements in the 2004 ADAAG or responded to questions regarding elements scoped for the first time in the 2004 ADAAG, including recreation facilities and play areas. Commenters also provided some information on how to assess the cost of elements in small facilities, office buildings, hotels and motels, assembly areas, hospitals and long -term care facilities, residential units, recreation facilities, and play areas. Still other commenters addressed the effective date of the proposed standards, the triggering event by which the effective date is http:// www. ada. gov /regs2010/title111_2010 /titlel1l 2010 regulations.htm#a201 5/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities calculated for new construction, and variations on a safe harbor that would excuse elements built in compliance with the 1991 Standards from compliance with the proposed standards. After careful consideration of the public comments in response to the ANPRM, on June 17, 2008, the Department published an NPRM covering title III. 73 FR 34508. The Department also published an NPRM on that day covering title II. 73 FR 34466. The NPRMs addressed the issues raised in the public's comments to the ANPRM and sought additional comment, generally and in specific areas, such as the Department's adoption of the 2004 ADAAG, the Department's regulatory assessment of the costs and benefits of the rule, its updates and amendments of certain provisions of the existing title II and III regulations, and areas that were in need of additional clarification or specificity. A public hearing was held on July 15, 2008, in Washington, DC. Forty-five individuals testified in person or by phone. The hearing was streamed live over the Internet. By the end of the 60 -day comment period, the Department had received 4,435 comments addressing a broad range of issues, many of which were common to the title II and title III NPRMs, from representatives of businesses and industries, State and local government agencies, disability advocacy organizations, and private individuals. The Department notes that this rulemaking was unusual in that much of the proposed regulatory text and many of the questions asked across titles II and III were the same. Consequently, many of the commenters did not provide separate sets of documents for the proposed title II and title III rules, and in many instances, the commenters did not specify which title was being commented upon. As a result, where comments could be read to apply to both titles II and III, the Department included them in the comments and responses for each final rule. Most of the commenters responded to questions posed specifically by the Department, including what were the most appropriate defmitions for terms such as "wheelchair," "mobility device," and "service animal "; how to quantify various benefits that are difficult to monetize; what requirements to adopt for ticketing and assembly areas; whether to adopt safe harbors for small businesses; and how best to regulate captioning. Some comments addressed specific requirements in the 2004 ADAAG or responded to questions regarding elements scoped for the first time in the 2004 ADAAG, including recreation facilities and play areas. Other comments responded to questions posed by the Department concerning certain specific requirements in the 2004 ADAAG. Relationship to Other Laws The Depai tinent of Justice regulation implementing title III, 28 CFR 36.103, provides the following: (a) Rule of interpretation. Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 791) or the regulations issued by Federal agencies pursuant to that title. (b) Section 504. This part does not affect the obligations of a recipient of Federal financial assistance to comply with the requirements of section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and regulations issued by Federal agencies implementing section 504. (c) Other laws. This part does not invalidate or limit the remedies, rights, and procedures of any other Federal, State, or local laws (including State common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them. These provisions remain unchanged by the final rule. The Department recognizes that public accommodations subject to title III of the ADA may also be subject to title I of the ADA, which prohibits discrimination on the basis of disability in employment; section 504 of the Rehabilitation Act of 1973 and other Federal statutes that prohibit discrimination on the basis of disability in the programs and activities of recipients of Federal financial assistance; and other Federal statutes such as the Air Carrier Access Act (ACAA), 49 U.S.C. 41705et seq, and the Fair Housing Act (FHAct), 42 U.S.C. 3601 et seq. Compliance with the Department's title II and title III regulations does not ensure compliance with other Federal statutes. Public accommodations that are subject to the ADA as well as other Federal disability discrimination laws must be aware of the requirements of all applicable laws and must comply with these laws and their implementing regulations. Although in many cases similar provisions of different statutes are interpreted to impose similar requirements, there are circumstances in which similar provisions are applied differently because of the nature of the covered entity or activity, or because of distinctions between the statutes. For example, emotional support animals that do not qualify as service animals under the Department's title III regulations may nevertheless qualify as permitted reasonable accommodations for persons with disabilities under the FHAct and the ACAA. See, e.g., Overlook Mutual Homes, Inc. v. Spencer, 666 F. Supp. 2d 850 (S.D. Ohio 2009). Public accommodations that operate housing facilities must ensure that they apply the reasonable accommodation requirements of the FHAct in determining whether to allow a particular animal needed by a person with a disability into housing and may not use the ADA definition as a justification for reducing their FHAct obligations. In addition, nothing in the http : //www.ada.gov /regs2010/titlelll 2010 /titIelll 2010 regulations.htm#a201 6/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities ADA prevents a public accommodation subject to one statute from modifying its policies and providing greater access in order to assist individuals with disabilities in achieving access to entities subject to other Federal statutes. For example, a quick service restaurant at an airport is, as a public accommodation, subject to the title III requirements, not to the ACAA requirements. Conversely, an air carrier that flies in and out of the same airport is required to comply with the ACAA, but is not covered by title III of the ADA. If a particular animal is a service animal for purposes of the ACAA and is thus allowed on • an airplane, but is not a service animal for purposes of the ADA, nothing in the ADA prohibits an airport restaurant from allowing a ticketed passenger with a disability who is traveling with a service animal that meets the ACAA's definition of a service animal to bring that animal into the facility even though under the ADA's definition of service animal the animal lawfully could be excluded. Organization of This Rule Throughout this rule, the original ADA Standards, which are republished as Appendix D to 28 CFR part 36, will be referred to as the "1991 Standards." The original title III regulation, codified at 28 CFR part 36 (2009), will be referred to as the "1991 regulation" or the "1991 title III regulation." ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines, 36 CFR part 1191, app. B and D (2009), will be referred to as the "2004 ADAAG." The Department's Notice of Proposed Rulemaking, 73 FR 34508 (June 17, 2008), will be referred to as the "NPRM." As noted above, the 2004 ADAAG, taken together with the requirements contained in subpart D of 28 CFR part 36 (New Construction and Alterations) of the final rule, will be referred to as the "2010 Standards." The amendments made to the 1991 title III regulation and the adoption of the 2004 ADAAG, taken together, will be referred to as the "final rule." In performing the required periodic review of its existing regulation, the Department has reviewed the title III regulation section by section, and, as a result, has made several clarifications and amendments in this rule. Appendix A of the final rule, "Guidance on Revisions to ADA Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and Commercial Facilities," codified as Appendix A to 28 CFR part 36, provides the Department's response to comments and its explanations of the changes to the regulation. The section entitled "Section -by- Section Analysis and Response to Comments" in Appendix A provides a detailed discussion of the changes to the title III regulation. The Section -by- Section Analysis follows the order of the 1991 title III regulation, except that regulatory sections that remain unchanged are not referenced. The discussion within each section explains the changes and the reasoning behind them, as well as the Department's response to related public comments. Subject areas that deal with more than one section of the regulation include references to the related sections, where appropriate. The Section -by- Section Analysis also discusses many of the • questions asked by the Department for specific public response. The section of Appendix A entitled "Other Issues" discusses public comment on several issues of concem to the Department that were the subject of questions that are not specifically addressed in the Section -by- Section Analysis. The Department's description of the 2010 Standards, as well as a discussion of the public comments on specific sections of the 2004 ADAAG, is found in Appendix B of this final rule. "Analysis and Commentary on the 2010 ADA Standards for Accessible Design." codified as Appendix B to 28 CFR part 36. The provisions of this rule generally take effect six months from its publication in the Federal Register. The Department has determined, however, that compliance with the requirements related to new construction and alterations and reservations at a place of lodging shall not be required until 18 months from the publication date of this rule. These exceptions are set forth in §§ 36.406(a) and 36.302(e)(3), respectively, and are discussed in greater detail in Appendix A. See discussions in Appendix A entitled "Section 36.406 Standards for New Construction and Alterations" and "Section 36.302(e) Hotel Reservations." This final rule only addresses issues that were identified in the NPRM as subjects the Department intended to regulate through this rulemaking proceeding. Because the Department indicated in the NPRM that it did not intend to regulate certain areas, including equipment and furniture, accessible golf cars, and movie captioning and video description, as part of this rulemaking proceeding, the Department believes it would be appropriate to solicit more public comment about these areas prior to making them the subject of a rulemaking. The Department intends to engage in additional rulemaking in the near future addressing accessibility in these areas and others, including next generation 9 -1 -1 and accessibility of Web sites operated by covered public entities and public accommodations. ADDITIONAL INFORMATION: Regulatory Process Matters (SBREFA, Regulatory Flexibility Act, and Executive Orders) • The Department must provide two types of assessments as part of its final rule: An analysis of the costs and benefits of adopting the changes contained in this rule, and a periodic review of its existing regulations to consider their impact on small entities, including small businesses, small nonprofit organizations, and small governmental jurisdictions. See E.O. 12866, 58 FR 51735, 3 CFR, 1994 Comp., p. 638, as amended; Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 610(a); OMB Circular A-4, available at http: / /www.whitehouse.gov /OMB /circulars /a004 /a -4.pdf (last visited June 24, 2010); E.O. 13272, 67 FR http : //www.ada.gov /regs2010/title111 2010/titletll 2010_regulations.htm#a201 7/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities 53461, 3 CFR, 2003 Comp., p. 247. In the NPRM, the Department kept open the possibility that, if warranted by public comments received on an issue raised by the 2004 ADAAG or by the results of the Department's Initial Regulatory Impact Analysis (Initial RIA), available at http: / /www.ada.gov/NPRM2008 /ria.htm, showing that the likely costs of making a particular feature or facility accessible • were disproportionate to the benefits (including both monetized and nonmonetized benefits) to persons with disabilities, the Attorney General, as a member of the Access Board, could return the issue to the Access Board for further consideration. After careful consideration, the Department has determined that it is unnecessary to return any issues to the Access Board for additional consideration. Executive Order 12866 This rule has been reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. The Department has evaluated its existing regulations for title II and title III section by section, and many of the provisions in the final rule for both titles reflect its efforts to mitigate any negative effects on small entities. A Final Regulatory Impact Analysis (Final RIA or RIA) was prepared by the Department's contractor, HDRIHLB Decision Economics, Inc. (HDR). In accordance with Executive Order 12866, as amended, and OMB Circular A-4, the Department has reviewed and considered the Final RIA and has accepted the results of this analysis as its assessment of the benefits and costs of the final rules. Executive Order 12866 refers explicitly not only to monetizable costs and benefits but also to "distributive impacts" and "equity," See E.O. 12866, section 1(a), and it is important to recognize that the ADA is intended to provide important benefits that are distributional and equitable in character. The ADA states, "[i]t is the purpose of this [Act] (1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; [and] (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities[.]" 42 U.S.C. 12101(b). Many of the benefits of this rule stem from the provision of such standards, which will promote inclusion, reduce stigma and potential embarrassment, and combat isolation, segregation, and second -class citizenship of individuals with disabilities. Some of these benefits are, in the words of Executive Order 12866, "difficult to quantify, but nevertheless essential to consider." E.O. 12866, section 1(a). The Department has considered such benefits here. Final Regulatory Impact Analysis • The Final RIA embodies a comprehensive benefit -cost analysis of the final rules for both title II and title III and assesses the incremental benefits and costs of the 2010 Standards relative to a primary baseline scenario (1991 Standards). In addition, the Department conducted additional research and analyses for requirements having the highest negative net present values under the primary baseline scenario. This approach was taken because, while the 1991 Standards are the only uniform set of accessibility standards that apply to public accommodations, commercial facilities, and State and local government facilities nationwide, it is also understood that many State and local jurisdictions have already adopted IBC /ANSI model code provisions that mirror those in the 2004 ADAAG. The assessments based on this approach assume that covered entities currently implementing codes that mirror the 2004 ADAAG will not need to modify their code requirements once the rules are finalized. They also assume that, even without the final rules, the current level of compliance would be unchanged. The Final RIA contains specific information, including data in chart form, detailing which States have already adopted the accessibility standards for this subset of six requirements. The Department believes that the estimates resulting from this approach represent a reasonable upper and lower measure of the likely effects these requirements will have that the Department was able to quantify and monetize. The Final RIA estimates the benefits and costs for all new (referred to as "supplemental ") requirements and revised requirements across all types of newly constructed and existing facilities. The Final RIA also incorporates a sophisticated risk analysis process that quantifies the inherent uncertainties in estimating costs and benefits and then assesses (through computer simulations) the relative impact of these factors when varied simultaneously. A copy of the Final RIA will be made available online for public review on the Department's ADA Home Page (http: / /www.ada.gov). From an economic perspective (as specified in OMB Circular A –B4), the results of the Final RIA demonstrate that the Department's final rules increase social resources and thus represent a public good because monetized benefits exceed monetized costs —that is, the regulations have a positive net present value (NPV). Indeed, under every scenario assessed in the Final RIA, the final rules have a positive NPV. The Final RIA's first scenario examines the incremental impact of the final rules using the "main" set of assumptions (i.e., assuming a primary baseline (1991 Standards), that the safe harbor applies, and that for title III entities barrier removal is readily achievable for 50 percent of elements subject to supplemental • requirements). Under this set of assumptions, the final rules have an expected NPV of $9.3 billion (7 percent discount rate) and $40.4 billion (3 percent discount rate). See Final RIA, table ES -1 & figure ES -2. Expected Impact of the Rules? (in billions) http : //www.ada.gov /regs2010 /titlelll 2010 /titl el I I_2010_regul ati ons.htm#a201 &193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities Discount rate Expected NPV Total Expected PV Total Expected PV (Costs) iii (Benefits) 3% $ 566.2 $25.8 7% $9.3 $22.0 $12.8 Water Closet Clearances The Department gave careful consideration to the costs and benefits of its adoption of the standards relating to water closet clearances in single -user toilet rooms. The primary effect of the Department's proposed final rules governing water closet clearances in single -user toilet rooms with in- swinging and out - swinging doors is to allow sufficient room for "side" or "parallel" methods of transferring from a wheelchair to a toilet. Under the current 1991 Standards, the requisite clearance space in single -user toilet rooms between and around the toilet and the lavatory does not permit these methods of transfer. Side or parallel transfers are used by large numbers of persons who use wheelchairs and are regularly taught in rehabilitation and occupational therapy. Currently, persons who use side or parallel transfer methods from their wheelchairs are faced with a stark choice at establishments with single -user toilet rooms —i.e., patronize the establishment but run the risk of needing assistance when using the restroom, travel with someone who would be able to provide assistance in toileting, or forgo the visit entirely. The revised water closet clearance regulations would make single -user toilet rooms accessible to all persons who use wheelchairs, not just those with the physical strength, balance, and dexterity and the training to use a front - transfer method. Single -user toilet rooms are located in a wide variety of public and private facilities, including restaurants, fast -food establishments, schools, retail stores, parks, sports stadiums, and hospitals. Final promulgation of these requirements might thus, for example, enable a person who uses a side or parallel transfer method to use the restroom (or use the restroom independently) at his or her local coffee shop for the first time. Because of the complex nature of its cost - benefit analysis, the Department is providing "plain language" descriptions of the 1 benefits calculations for the two revised requirements with the highest estimated total costs: Water closet clearance in single - user toilet rooms with out - swinging doors (RIA Req. #28) (section 604.3 of the 2010 Standards) and water closet clearance in single -user toilet rooms with in- swinging doors (RIA Req. #32) (sections 604.3 and 603.2.3 Exception 2 of the 2010 • Standards). Since many of the concepts and calculations in the Final RIA are highly technical, it is hoped that, by providing "lay" descriptions of how benefits are monetized for an illustrative set of requirements, the Final RIA will be more transparent and afford readers a more complete understanding of the benefits model generally. Because of the widespread adoption of the water closet clearance standards in existing State and local building codes, the following calculations use the IBC /ANSI baseline. General description of monetized benefits for water closet clearance in single user toilet rooms—out-swinging doors (Req. #28). In order to assess monetized benefits for the requirement covering water closet clearances in single -user toilet rooms with out - swinging doors, a determination needed to be made concerning the population of users with disabilities who would likely benefit from this revised standard. Based on input received from a panel of experts jointly convened by HDR and the Department to discuss benefits - related estimates and assumptions used in the RIA model, it was assumed that accessibility changes brought about by this requirement would benefit persons with any type of ambulatory (i.e., mobility- related) disability, such as persons who use wheelchairs, walkers, or braces. Recent census figures estimate that about 11.9 percent of Americans ages 15 and older have an ambulatory disability, or about 35 million people. This expert panel also estimated that single -user toilet rooms with out - swinging doors would be used slightly less than once every other visit to a facility with such toilet rooms covered by the final rules (or, viewed another way, about once every two hours spent at a covered facility assumed to have one or more single -user toilet rooms with out - swinging doors) by an individual with an ambulatory disability. The expert panel further estimated that, for such individuals, the revised requirement would result in an average time savings of about five and a half minutes when using the restroom. This time savings is due to the revised water closet clearance standard, which permits, among other things, greater flexibility in terms of access to the toilet by parallel or side transfer, thereby perhaps reducing the wait for another person to assist with toileting and the need to twist or struggle to access the toilet independently. Based on average hourly wage rates compiled by the U.S. Department of Labor, the time savings for Req. #28 is valued at just under $10 per hour. For public and private facilities covered by the final rules, it is estimated that there are currently about 11 million single -user toilet rooms with out - swinging doors. The majority of these types of single -user toilet rooms, nearly 7 million, are assumed to be located at "Indoor Service Establishments," a broad facility group that encompasses various types of indoor retail stores such as bakeries, stores, clothing stores, and hardware stores. Based on construction industry data, it was estimated grocery g • �' oce that approximately 3 percent of existing single -user toilet rooms with out - swinging doors would be altered each year, and that the number of newly constructed facilities with these types of toilet rooms would increase at the rate of about 1 percent each year. However, due to the widespread adoption at the State and local level of model code provisions that mirror Req. #28, it is further understood that about half of all existing facilities assumed to have single -user toilet rooms with out - swinging doors http://www.ada.goviregs2010/title111_2010ititle111 2010 regulations.htm#a201 9/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities already are covered by State or local building codes that require equivalent water closet clearances. Due to the general element -by- element safe harbor provision in the final rules, no unaltered single -user toilet rooms that comply with the current 1991 Standards will be required to retrofit to meet the revised clearance requirements in the final rules. With respect to new construction, it is assumed that each single -user toilet room with an out - swinging door will last the life of • the building, about 40 years. For alterations, the amount of time such a toilet room will be used depends upon the remaining life of the building (i.e., a period of time between 1 and 39 years). Summing up monetized benefits to users with disabilities across all types of public and private facilities covered by the final rules, and assuming 46 percent of covered facilities nationwide are located in jurisdictions that have adopted the relevant equivalent IBC / ANSI model code provisions, it is expected that the revised requirement for water closet clearance in single - user toilet rooms with out - swinging doors will result in net benefits of approximately $900 million over the life of these regulations. General description of monetized benefits for water closet clearance in single -user toilet rooms —in- swinging doors (Req. # 32). For the water closet clearance in single -user toilet rooms with the in- swinging door requirement (Req. #32), the expert panel determined that the primary beneficiaries would be persons who use wheelchairs. As compared to single -user toilet rooms with out - swinging doors, those with in- swinging doors tend to be larger (m terms of square footage) in order to accommodate clearance for the in- swinging door and, thus, are already likely to have adequate clear floor space for persons with disabilities who use other types of mobility aids such as walkers and crutches. The expert benefits panel estimated that single -user toilet rooms with in- swinging doors are used less frequently on average — about once every 20 visits to a facility with such a toilet room by a person who uses a wheelchair —than their counterpart toilet rooms with out - swinging doors. This panel also determined that, on average, each user would realize a time savings of about 9 minutes as a result of the enhanced clearances required by this revised standard. The RIA estimates that there are about 4 million single -user toilet rooms with in- swinging doors in existing facilities. About half of the single -user toilet rooms with in- swinging doors are assumed to be located in single -level stores, and about a quarter of them are assumed to be located in restaurants. Based on construction industry data, it was estimated that approximately 3 percent of existing single -user toilet rooms with in- swinging doors would be altered each year, and that the number of newly constructed facilities with these types of toilet rooms would increase at the rate of about 1 percent each year. However, due to • the widespread adoption at the State and local level of model code provisions that mirror Req. #32, it is further understood that slightly more than 70 percent of all existing facilities assumed to have single -user toilet rooms with in- swinging doors already are covered by State or local building codes that require equivalent water closet clearances. Due to the general element -by- element safe harbor provision in the final rules, no unaltered single -user toilet rooms that comply with the current 1991 Standards will be required to retrofit to meet the revised clearance requirements in the final rules. Similar to the assumptions for Req. #28, it is assumed that newly constructed single -user toilet rooms with in- swinging doors will last the life of the building, about 40 years. For alterations, the amount of time such a toilet room will be used depends upon the remaining life of the building (i.e., a period of time between 1 and 39 years). Over this time period, the total estimated value of benefits to users of water closets with in- swinging doors from the time they will save and decreased discomfort they will experience is nearly $12 million. Additional benefits of water closet clearance standards. The standards requiring sufficient space in single -user toilet rooms for a wheelchair user to effect a side or parallel transfer are among the most costly (in monetary terms) of the new provisions in the Access Board's guidelines that the Department adopts in this rule —but also, the Department believes, one of the most beneficial in non - monetary terms. Although the monetized costs of these requirements substantially exceed the monetized benefits, the additional benefits that persons with disabilities will derive from greater safety, enhanced independence, and the avoidance of stigma and humiliation— benefits that the Department's economic model could not put in monetary terms —are, in the Department's experience and considered judgment, likely to be quite high. Wheelchair users, including veterans returning from our Nation's wars with disabilities, are taught to transfer onto toilets from the side. Side transfers are the safest, most efficient, and most independence - promoting way for wheelchair users to get onto the toilet. The opportunity to effect a side transfer will often obviate the need for a wheelchair user or individual with another type of mobility impairment to obtain the assistance of another person to engage in what is, for most people, among the most private of activities. Executive Order 12866 refers explicitly not only to monetizable costs and benefits but also to "distributive impacts" and "equity," See E.O. 12866, section 1(a), and it is important to recognize that the ADA is intended to provide important benefits that are distributional and equitable in character. These water closet clearance provisions will have non - monetized benefits that • promote equal access and equal opportunity for individuals with disabilities, and will further the ADA' s purpose of providing "a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. 12101(b)(1). The Department's calculations indicated that, in fact, people with the relevant disabilities would have to place only a very small monetary value on these quite substantial benefits for the costs and benefits of these water closet clearance standards to http:// www. ada. gov /regs2010/titlelll_2010/titlelll 2010 regulations.htm#a201 10/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities break even. To make these calculations, the Department separated out toilet rooms with out - swinging doors from those with in- swinging doors, because the costs and benefits of the respective water closet clearance requirements are significantly different. The Department estimates that, assuming 46 percent of covered facilities nationwide are located in jurisdictions that have adopted the relevant equivalent IBC /ANSI model code provisions, the costs of the requirement as applied to toilet rooms with out - swinging doors will exceed the monetized benefits by $454 million, an annualized net cost of approximately $32.6 million. But a large number of people with disabilities will realize benefits of independence, safety, and avoided stigma and humiliation as a result of the requirement's application in this context. Based on the estimates of its expert panel and its own experience, the Department believes that both wheelchair users and people with a variety of other mobility disabilities will benefit. The Department estimates that people with the relevant disabilities will use a newly accessible single -user toilet room with an out - swinging door approximately 677 million times per year. Dividing the $32.6 million annual cost by the 677 million annual uses, the Department concludes that for the costs and benefits to break even in this context, people with the relevant disabilities will have to value safety, independence, and the avoidance of stigma and humiliation at just under 5 cents per visit. The Department believes, based on its experience and informed judgment, that 5 cents substantially understates the value people with the relevant disabilities would place on these benefits in this context. There are substantially fewer single -user toilet rooms with in- swinging doors, and substantially fewer people with disabilities will benefit from making those rooms accessible. While both wheelchair users and individuals with other ambulatory disabilities will benefit from the additional space in a room with an out - swinging door, the Department believes, based on the estimates of its expert panel and its own experience, that wheelchair users likely will be the primary beneficiaries of the in- swinging door requirement. The Department estimates that people with the relevant disabilities will use a newly accessible single -user toilet room with an in- swinging door approximately 8.7 million times per year. Moreover, the alteration costs to make a single -user toilet room with an in- swinging door accessible are substantially higher (because of the space taken up by the door) than the equivalent costs of making a room with an out - swinging door accessible. Thus, the Department calculates that, assuming 72 percent of covered facilities nationwide are located in jurisdictions that have adopted the relevant equivalent IBC /ANSI model code provisions, the costs of applying the toilet room accessibility standard to rooms with in- swinging doors will exceed the monetized benefits of doing so by $266.3 million over the life of the regulations, or approximately $19.14 million per year. Dividing the $19.14 million annual cost by the 8.7 million annual uses, the Department concludes that for the costs and benefits to break even in this context, people with the relevant disabilities will have to value safety, independence, and the avoidance of stigma and humiliation at approximately $2.20 per visit. The Department believes, based on its experience and informed judgment, that this figure approximates, and probably understates, the value wheelchair users place on safety, independence, and the avoidance of stigma and humiliation in this context. Alternate Scenarios Another scenario in the Final RIA explores the incremental impact of varying the assumptions concerning the percentage of existing elements subject to supplemental requirements for which barrier removal would be readily achievable. Readily achievable barrier removal rates are modeled at 0 percent, 50 percent, and 100 percent levels. The results of this scenario show that the expected NPV is positive for each readily achievable barrier removal rate and that varying this assumed rate has little impact on expected NPV. See Final RIA, figure ES -3. A third set of analyses in the Final RIA demonstrates the impact of using alternate baselines based on model codes instead of the primary baseline. The IBC model codes, which have been widely adopted by State and local jurisdictions around the country, are significant because many of the requirements in the final rules mirror accessibility provisions in the IBC model codes (or standards incorporated therein by reference, such as ANSI A117.1). The actual economic impact of the Depaituient's final rules is, therefore, tempered by the fact that many jurisdictions nationwide have already adopted and are enforcing portions of the final rules— indeed, this was one of the goals underlying the Access Board's efforts to harmonize the 2004 ADAAG Standards with the model codes. However, capturing the economic impact of this reality poses a difficult modeling challenge due to the variety of methods by which States and localities have adopted the IBC /ANSI model codes (e.g., in whole, in part, and with or without amendments), as well as the lack of a national "facility census' establishing the location, type, and age of existing ADA- covered facilities. As a result, in the first set of alternate IBC baseline analyses, the Final RIA assumes that all of the three IBC model codes — IBC 2000, IBC 2003, and IBC 2006 —have been fully adopted by all jurisdictions and apply to all facilities nationwide. As with the primary baseline scenarios examined in the Final RIA, use of these three alternate IBC baselines results in positive expected NPVs in all cases. See Final RIA, figure ES-4. These results also indicate that IBC 2000 and IBC 2006 respectively have the highest and lowest expected NPVs. These results are due to changes in the make -up of the set of requirements that is included in each alternative baseline. Additionally, a second, more limited alternate baseline analysis in the Final RIA uses a State - specific and requirement - specific alternate IBC /ANSI baseline in order to demonstrate the likely actual incremental impact of an illustrative subset of 20 requirements under current conditions nationwide. For this analysis, research was conducted on a subset of 20 requirements in the final rules that have negative net present values under the primary baseline and readily identifiable IBC /ANSI counterparts to determine the extent to which they each respectively have been adopted at the State or local level. With respect to facilities, the population of adopting jurisdictions was used as a proxy for facility location. In other words, it http : //www.ada.gov /regs2010/title1l1 2010 /titlelll 2010 regulations.htm#a201 11/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities was assumed that the number of ADA- covered facilities respectively compliant with these 20 requirements was equal to the percentage of the United States population (based on statistics from the Census Bureau) currently residing in those States or local jurisdictions that have adopted the IBC /ANSI counterparts to these requirements. The results of this more limited analysis, using State - specific and requirement - specific alternate IBC /ANSI baselines for these 20 requirements, demonstrate that the widespread adoption of IBC model codes by States and localities significantly lessens the financial impact of these • specific requirements. Indeed, the Final RIA estimates that, if the NPVs for these 20 requirements resulting from the requirement- specific alternate IBC /ANSI baseline are substituted for their respective results under the primary baseline, the overall NPV for the final rules increases from $9.2 billion to $12.0 billion. See Final RIA, section 6.2.2 & table 10. Benefits Not Monetized in the FormalAnalysis Finally, the RIA recognizes that additional benefits are likely to result from the new standards. Many of these benefits are more difficult to quantify. Among the potential benefits that have been discussed by researchers and advocates are reduced administrative costs due to harmonized guidelines, increased business opportunities, increased social development, and improved health benefits. For example, the final rules will substantially increase accessibility at newly scoped facilities such as recreation facilities and judicial facilities, which previously have been very difficult for persons with disabilities to access. Areas where the Department believes entities may incur benefits that are not monetized in the formal analysis include, but may not be limited to, the following: Use benefits accruing to persons with disabilities. The final rules should improve the overall sense of well -being of persons with disabilities, who will know that public entities and places of public accommodation are generally accessible, and who will have improved individual experiences. Some of the most frequently cited qualitative benefits of increased access are the increase in one's personal sense of dignity that arises from increased access and the decrease in possibly humiliating incidents due to accessibility barriers. Struggling to join classmates on a stage, to use a bathroom with too little clearance, or to enter a swimming pool all negatively affect a person's sense of independence and can lead to humiliating accidents, derisive comments, or embarrassment. These humiliations, together with feelings of being stigmatized as different or inferior from being relegated to use other, less comfortable or pleasant elements of a facility (such as a bathroom instead of a kitchen sink for rinsing a coffee mug at work), all have a negative effect on persons with disabilities. Use benefits accruing to persons without disabilities. Improved accessibility can affect more than just the rule's target population; persons without disabilities may also benefit from many of the requirements. Even though the requirements were not designed to benefit persons without disabilities, any time savings or easier access to a facility experienced by persons without disabilities are also benefits that should properly be attributed to that change in accessibility. Curb cuts in sidewalks • make life easier for those using wheeled suitcases or pushing a baby stroller. For people with a lot of luggage or a need to change clothes, the larger bathroom stalls can be highly valued. A ramp into a pool can allow a child (or adult) with a fear of water to ease into that pool. All are examples of "unintended" benefits of the rule. And ideally, all should be part of the calculus of the benefits to society of the rule. Social benefits. Evidence supports the notion that children with and without disabilities benefit in their social development from interaction with one another. Therefore, there will likely be social development benefits generated by an increase in accessible play areas. However, these benefits are nearly impossible to quantify for several reasons. First, there is no guarantee that accessibility will generate play opportunities between children with and without disabilities. Second, there may be substantial overlap between interactions at accessible play areas and interactions at other facilities, such as schools and religious facilities. Third, it is not certain what the unit of measurement for social development should be. Non -use benefits. There are additional, indirect benefits to society that arise from improved accessibility. For instance, resource savings may arise from reduced social service agency outlays when people are able to access centralized points of service delivery rather than receiving home -based care. Home -based and other social services may include home health care visits and welfare benefits. Third -party employment effects can arise when enhanced accessibility results in increasing rates of consumption by disabled and non - disabled populations, which in turn results in reduced unemployment. Two additional forms of benefits are discussed less often, let alone quantified: Option value and existence value. Option value is the value that people with and without disabilities derive from the option of using accessible facilities at some point in the future. As with insurance, people derive benefit from the knowledge that the option to use the accessible facility exists, even if it ultimately goes unused. Simply because an individual is a nonuser of accessible elements today does not mean that he or she will remain so tomorrow. In any given year, there is some probability that an individual will develop a disability (either temporary or permanent) that will necessitate use of these features. For example, the 2000 Census found that 41.9 percent of adults 65 years and older identified themselves as having a disability. Census Bureau figures, moreover, project that the number of people 65 years and older will more than double between 2000 and 2030 —from 35 million to 71.5 million. Therefore, even individuals who have no direct use for accessibility features today get a direct benefit from the knowledge of their existence should such individuals need them in the future. Existence value is the benefit that individuals get from the plain existence of a good, service or resource —in this case, accessibility. It can also be described as the value that people both with and without disabilities derive from the guarantees of equal treatment and non - discrimination that are accorded through the provision of accessible facilities. In other words, people http:// www. ada. gov /regs2010 /titlelll_2010 /titlelll 2010_regulations.htm#a201 12/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities value living in a country that affords protections to individuals with disabilities, whether or not they themselves are directly or indirectly affected. Unlike use benefits and option value, existence value does not require an individual ever to use the resource or plan on using the resource in the future. There are numerous reasons why individuals might value accessibility even if they do not require it now and do not anticipate needing it in the future. Costs Not Monetized in the Formal Analysis The Department also recognizes that in addition to benefits that cannot reasonably be quantified or monetized, there may be negative consequences and costs that fall into this category as well. The absence of a quantitative assessment of such costs in the formal regulatory analysis is not meant to minimize their importance to affected entities; rather, it reflects the inherent difficulty in estimating those costs. Areas where the Department believes entities may incur costs that are not monetized in the formal analysis include, but may not be limited to, the following: Costs from deferring or forgoing alterations. Entities covered by the final rules may choose to delay otherwise desired alterations to their facilities due to the increased incremental costs imposed by compliance with the new requirements. This may lead to facility deterioration and decrease in the value of such facilities. In extreme cases, the costs of complying with the new requirements may lead some entities to opt to not build certain facilities at all. For example, the Department estimates that the incremental costs of building a new wading pool associated with the final rules will increase by about $142,500 on average. Some facilities may opt to not build such pools to avoid incurring this increased cost. Loss of productive space while moding an existing facility. During complex alterations, such as where moving walls or plumbing systems will be necessary to comply with the final rules, productive space may be unavailable until the alterations are complete. For example, a hotel altering its bathrooms to comply with the final rules will be unable to allow guests to occupy these rooms while construction activities are underway, and thus the hotel may forgo revenue from these rooms during this time. While the amount of time necessary to perform alterations varies significantly, the costs associated with unproductive space could be high in certain cases, especially if space is already limited or if an entity or facility is located in an area where real estate values are particularly high (e.g., New York or San Francisco). Expert fees. Another type of cost to entities that is not monetized in the formal analysis is legal fees to determine what, if anything, a facility needs to do in order to comply with the new rules or to respond to lawsuits. Several commenters indicated that entities will incur increased legal costs because the requirements are changing for the first time since 1991. Since litigation risk could increase, entities could spend more on legal fees than in the past. Likewise, covered entities may face incremental costs when undertaking alterations because their engineers, architects, or other consultants may also need to consider what modifications are necessary to comply with the new requirements. The Department has not quantified the incremental costs of the services of these kinds of experts. Reduction in facility value and losses to individuals without disabilities due to the new accessibility requirements. It is possible that some changes made by entities to their facilities in order to comply with the new requirements may result in fewer individuals without disabilities using such facilities (because of decreased enjoyment) and may create a disadvantage for individuals without disabilities, even though the change might increase accessibility for individuals with disabilities. For example, the new requirements for wading pools might decrease the value of the pool to the entity that owns it due to fewer individuals using it (because the new requirements for a sloped entry might make the pool too shallow). Similarly, several commenters from the miniature golf industry expressed concern that it would be difficult to comply with the regulations for accessible holes without significantly degrading the experience for other users. Finally, with respect to costs to individuals who do not have disabilities, a very tall person, for example, may be inconvenienced by having to reach further for a lowered light switch. Section 610 Review The Department also is required to conduct a periodic regulatory review pursuant to section 610 of the RFA, as amended by the SBREFA. The review requires agencies to consider five factors: (1) The continued need for the rule; (2) the nature of complaints or comments received concerning the rule from the public; (3) the complexity of the rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with other Federal rules, and, to the extent feasible, with State and local governmental rules; and (5) the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule. 5 U.S.C. 610(b). Based on these factors, the agency is required to determine whether to continue the rule without change or to amend or rescind the rule, to minimize any significant economic impact of the rule on a substantial number of small entities. See id. 610(a). In developing the 2010 Standards, the Department reviewed the 1991 Standards section by section, and, as a result, has made several clarifications and amendments in both the title II and title III implementing regulations. The changes reflect the Department's analysis and review of complaints or comments from the public, as well as changes in technology. Many of the amendments aim to clarify and simplify the obligations of covered entities. As discussed in greater detail above, one significant goal of the development of the 2004 ADAAG was to eliminate duplication or overlap in Federal accessibility http : //www.ada.gov /regs2010 /titlelll 2010 /title11l 2010 regulations.htm#a201 13/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities guidelines, as well as to harmonize the Federal guidelines with model codes. The Department also has worked to create harmony where appropriate between the requirements of titles II and III. Finally, while the regulation is required by statute and there is a continued need for it as a whole, the Department proposes several modifications that are intended to reduce its effects on small entities. • The Department has consulted with the Small Business Administration's Office of Advocacy about this process. The Office of Advocacy has advised that although the process followed by the Department was ancillary to the proposed adoption of revised ADA Standards, the steps taken to solicit public input and to respond to public concerns are functionally equivalent to the process required to complete a section 610 review. Therefore, this rulemaking fulfills the Department's obligations under the RFA. Final Regulatory Flexibility Analysis This final rule also has been reviewed by the Small Business Administration's Office of Advocacy (Advocacy) in accordance with Executive Order 13272, 67 FR 53461, 3 CFR, 2003 Comp., p. 247. Chapter Seven of the Final RIA demonstrates that the final rule will not have a significant economic impact on a substantial number of small entities. The Department has also conducted a final regulatory flexibility analysis (FRFA) as a component of this nulemaking. Collectively, the ANPRM, NPRM, Initial RIA, Final RIA, and 2010 Standards include all of the elements of a FRFA required by the RFA. See 5 U.S.C. 604(a)(1)—(5). Section 604(a) lists the specific requirements for a FRFA. The Department has addressed these RFA requirements throughout the ANPRM, NPRM, the 2010 Standards, and the RIA. In summary, the Department has satisfied its FRFA obligations under section 604(a) by providing the following: 1. Succinct summaries of the need for, and objectives of the final rule. The Department is issuing this final rule in order to comply with its obligations under both the ADA and the SBREFA. The Department is also updating or amending certain provisions of the existing title III regulation so that they are consistent with the title II regulations and comport with the Department's legal and practical experiences in enforcing the ADA. The ADA requires the Department to adopt enforceable accessibility standards under the ADA that are consistent with the Access Board's minimum accessibility guidelines and requirements. Accordingly, this rule adopts ADA Chapter 1, ADA • Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as part of the 2010 Standards, which will give the guidelines legal effect with respect to the Department's title II and title III regulations. Under the SBREFA, the Department is required to perform a periodic review of its 1991 rule because the rule may have a significant economic impact on a substantial number of small entities. The SBREFA also requires the Department to make a regulatory assessment of the costs and benefits of any significant regulatory action. See preamble sections of the final rules for titles II and III entitled "Summary"; Department of Justice Advanced Notice of Proposed Rulemaking, 69 FR 58768, 58768B70, (Sept. 30, 2004) (outlining the regulatory history, goals, and rationale underlying the Department's proposal to revise its regulations implementing titles II and III of the ADA); and Department of Justice Notice of Proposed Rulemaking, 73 FR 34508, 34508B 14 (June 17, 2008) (outlining the regulatory history and rationale underlying the Department's proposal to revise its regulations implementing titles II and III of the ADA). 2. Summaries of significant issues raised by public comments in response to the Department's initial regulatory flexibility analysis (IRFA) and discussions of regulatory revisions made as a result of such comments. The majority of the comments received by the Department addressing its IRFA set forth in the title III NPRM were submitted by the Advocacy. Advocacy acknowledged that the Department took into account the comments and concerns of small businesses; however, Advocacy remained concerned about certain items in the Department's NPRM and requested clarification or additional guidance on certain items. General Safe Harbor. Advocacy expressed support for the Department's proposal to allow an element -by- element safe harbor for elements that now comply with the 1991 Standards and encouraged the Department to include specific technical assistance in the Small Business Compliance Guide that the Department is required to publish pursuant to section 212 of the SBREFA, 5 U.S.C. 610 et seq. Advocacy requested that technical assistance outlining which standards are subject to the safe harbor be included in the Department's guidance. The Department has provided a list of the new requirements in the 2010 Standards that are not eligible for the safe harbor in § 36.304(d)(2)(iii)(A) —(L) of the final rule and plans to include additional information about the application of the safe harbor in the Department's Small Business Compliance Guide. Advocacy also • requested that guidance regarding the two effective dates for regulations also be provided, and the Department plans to include such guidance in its Small Business Compliance Guide. Small Business Safe Harbor. Advocacy expressed disappointment that the Department did not include a small business safe harbor in the final rule. In the NPRM, the Department proposed to include a small business safe harbor. Advocacy conceptually supported this safe harbor but had concerns regarding its application. Commenters from both the disability http : //www.ada.gov /regs2010 /titlelll 2010 /titlelll 2010 regulations.htm#a201 14/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities community and the business community uniformly, and quite adamantly, opposed the Department's proposal. Some business commenters suggested alternative safe harbors, but there was no common thread among their suggestions that would enable the Department to craft a proposal that would draw support from the affected communities. Advocacy recommended that the Department continue to study how the proposed small business safe harbor might be made workable in future rulemakings, and recommended that the Department also seek other alternatives that minimize the economic impact of the ADA rulemakings in the future. The Department is mindful of its obligations under the SBREFA and will be sensitive to the need to mitigate costs for small businesses in any future rulemaking; however, based on the information currently available, the Department has declined to commit to a specific regulatory approach in the final rule. Indirect Costs. Advocacy and other commenters representing business interests expressed concern that businesses would incur substantial indirect costs under the final rule for accessibility consultants, legal counsel, training, and the development of new policies and procedures. The Department believes that such "indirect costs," even assuming they would occur as described by these commenters, are not properly attributed to the Department's final rule implementing the ADA. The vast majority of the new requirements are incremental changes subject to a safe harbor. All businesses currently in compliance with the 1991 Standards will neither need to undertake further retrofits nor require the services of a consultant to tell them so. If, on the other hand, elements at an existing facility are not currently in compliance with the 1991 Standards, then the cost of making such a determination and bringing these elements into compliance are not properly attributed to the final rule, but to lack of compliance with the 1991 Standards. For the limited number of requirements in the final rule that are supplemental, the Department believes that covered entities simply need to determine whether they have an element covered by a supplemental requirement (e.g., a swimming pool) and then conduct any necessary barrier removal work either in -house or by contacting a local contractor. Determining whether such an element exists is expected to take only a minimal amount of staff time. Nevertheless, Chapter 5 of the Final RIA has a high -end estimate of the additional management costs of such evaluation (from 1 to 8 hours of staff time). The Department also anticipates that businesses will incur minimal costs for accessibility consultants to ensure compliance with the new requirements for New Construction and Alterations in the final rule. Both the 2004 ADAAG and the proposed requirements have been made public for some time and are already being incorporated into design plans by architects and builders. Further, in adopting the final rule, the Department has sought to harmonize, to the greatest extent possible, the ADA been adopted on a widespread basis by State and local jurisdictions across the country. with model codes that have bee adop p y jurisdictions ry . Accordingly, many of the requirements in the final rule are already incorporated into building codes nationwide. Additionally, it is assumed to be part of the regular course of business —and thereby incorporated into standard professional services or construction contracts —for architects and contractors to keep abreast of changes in applicable Federal, State, and local laws and building codes. Given these considerations, the Department has determined that the additional costs, if any, for architectural or contractor services that arise out of the final rule should be minimal. Some commenters stated that the final rule would require them to develop new policies or manuals to retrain employees on the revised ADA standards. However, it is the Department's view that because the revised and supplemental requirements address architectural issues and features, the final rule would require minimal, if any, changes to the overall policies and procedures of covered entities. Finally, commenters representing business interests expressed the view that the final rule would cause businesses to incur significant legal costs in order to defend ADA lawsuits. However, regulatory impact analyses are not an appropriate forum for assessing the cost covered entities may bear, or the repercussions they may face, for failing to comply (or allegedly failing to comply) with current law. See Final RIA, Ch. 3, section 3.1.4, "Other Management Transition Costs "; Ch. 5, "Updates to the Regulatory Impact Analysis "; and table 15, "Impact of NPV of Estimated Managerial Costs for Supplemental Requirements at All Facilities." 3. Estimates of the number and type of small entities to which the final rule will apply. The Department estimates that the final rule will apply to approximately three million small entities or facilities covered by title III. See Final RIA, Ch. 7, "Small Business Impact Analysis," table 17, and app. 5, "Small Business Data "; see also 73 FR 36964, 36996 -37009 (June 30, 2008) (estimating the number of small entities the Department believes may be impacted by the NPRM and calculating the likely incremental economic impact of the rule on small facilities /entities versus "typical" (i.e., average -sized facilities /entities). 4. A description of the projected reporting, record- keeping, and other compliance requirements of the final rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record. The final rule imposes no new recordkeeping or reporting requirements. See preamble section entitled "Paperwork Reduction Act." Small entities may incur costs as a result of complying with the final rules. These costs are detailed in the Final RIA, Chapter 7, "Small Business Impact Analysis" and accompanying Appendix 5, "Small Business Data." http://www.ada.gov/regs2010/title111_2010/title111_2010regulat ons.htm#a201 15193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities 5. Descriptions of the steps taken by the Department to minimize any significant economic impact on small entities consistent iJo with the stated objectives of the ADA, including the reasons for selecting the alternatives adopted in the final rule and for rejecting other significant alternatives. From the outset of this rulemaking, the Department has been mindful of small entities and has taken numerous steps to minimize the impact of the final rule on small businesses. Several of these steps are summarized below. As an initial matter, the Department— as a voting member of the Access Board —was extensively involved in the development of the 2004 ADAAG. These guidelines, which are incorporated into the 2010 Standards, reflect a conscious effort to mitigate any significant economic impact on small businesses in several respects. First, one of the express goals of the 2004 ADAAG is harmonization of Federal accessibility guidelines with industry standards and model codes that often form the basis of State and local building codes, thereby minimizing the impact of these guidelines on all covered entities, but especially small businesses. Second, the 2004 ADAAG is the product of a 10 -year rulemaking effort in which a host of private and public entities, including small business groups, worked cooperatively to develop accessibility guidelines that achieved an appropriate balance between accessibility and cost. For example, as originally recommended by the Access Board's Recreation Access Advisory Committee, all holes on a miniature golf course would be required to be accessible except for sloped surfaces where the ball could not come to rest. See, e.g., "ADA Accessibility Guidelines for Buildings and Facilities — Recreation Facilities and Outdoor Developed Areas," Access Board Advance Notice of Proposed Rulemaking, 59 FR 48542 (Sept. 21, 1994). Miniature golf trade groups and facility operators, who are nearly all small businesses, expressed significant concern that such requirements would be prohibitively expensive, would require additional space, and might fundamentally alter the nature of their courses. See, e.g., "ADA Accessibility Guidelines for Buildings and Facilities — Recreation Facilities," Access Board Notice of Proposed Rulemaking, 64 FR 37326 (July 9, 1999). In consideration of such concerns and after holding informational meetings with miniature golf representatives and persons with disabilities, the Access Board significantly revised the final miniature golf guidelines. The final guidelines not only reduced significantly the number of holes required to be accessible to 50 percent of all holes (with one break in the sequence of consecutive holes permitted), but also added an exemption for carpets used on playing surfaces, modified ramp landing slope and size requirements, and reduced the space required for start of play areas. See, e.g., Americans with Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities— Recreation Facilities Final Rule, 36 CFR parts 1190 and 1191. The Department also published an ANPRM to solicit public input on the adoption of the 2004 ADAAG as the revised Federal accessibility standards implementing titles II and III of the ADA. Among other things, the ANPRM specifically invited comment from small entities regarding the proposed rule's potential economic impact and suggested regulatory alternatives to ameliorate any such impact. See "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities," Department of Justice Advance Notice of Proposed Rulemaking, 69 FR 58768, 58778 -79 (Sept. 30, 2004). The Depaitinent received over 900 comments, and small business interests figured prominently. See "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, " Department of Justice Notice of Proposed Rulemaking, 73 FR 34508, 34511, 34550 (June 17, 2008). Subsequently, when the Department published its NPRM in June 2008, several regulatory proposals were included to address concerns raised by the small business community in ANPRM comments. First, to mitigate costs to existing facilities, the Department proposed an element -by- element safe harbor that would exempt elements in compliance with applicable technical and scoping requirements in the 1991 Standards from any retrofit obligations under the revised title III rule. Id. at 34514 -15, 34532 -33. While this proposed safe harbor applied to title III covered entities irrespective of size, it was small businesses that especially stood to benefit since, according to comments from small business advocates, small businesses are more likely to operate in older buildings and facilities. The title III NPRM also offered for public comment a novel safe harbor provision specifically designed to address small business advocates' request for clearer guidance on the readily achievable barrier removal requirement. This proposal provided that qualified small businesses would be deemed to have satisfied their readily achievable barrier removal obligations for a given year if, during that tax year, they had spent at least 1 percent of their respective gross revenues undertaking measures in compliance with title III barrier removal requirements. Id. at 34538 -39. Lastly, the NPRM sought public input on the inclusion of reduced scoping provisions for certain types of small existing recreation facilities (i.e., swimming pools, play areas, and saunas). Id. at 34515, 34534 -37. During the NPRM comment period, the Department engaged in considerable public outreach to the small business community. A public hearing was held in Washington, D.C., during which nearly 50 persons, including several small business owners, testified in person or by phone. See Transcript of the Public Hearing on Notices of Proposed Rulemaking (July 15, 2008), available at www. ada.gov/NPRM2008 /public_hearing transcript.htm. This hearing was also streamed live over the Internet. By the end of the 60 -day comment period, the Department had also received nearly 4,500 public comments on the title III NPRM, including a significant number of comments reflecting small businesses' perspectives on a wide range of regulatory issues. In addition to soliciting input from small entities through the formal process for public comment, the Department also targeted the small business community with less formal regulatory discussions, including a Small Business Roundtable convened by the Office of Advocacy and held at the offices of the Small Business Administration in Washington, D.C., and an informational question- and - answer session concerning the titles II and III NPRMs at the Department of Justice in which http : //www.ada.gov /regs2010/titleli1 2010/titlelll 2010_regulati ons.htm#a201 16/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities business representatives attended in- person and by telephone. These outreach efforts provided the small business community with information on the NPRM proposals being considered by the Department and gave small businesses the opportunity to ask questions of the Department and provide feedback. As a result of the feedback provided by representatives of small business interests on the title III NPRM, the Department was able to assess the impact of various alternatives on small businesses before adopting its final rule and took steps to minimize any significant impact on small entities. Most notably, the final rule retains the element -by- element safe harbor for which the small business community voiced strong support. See Appendix A discussion of removal of barriers (§ 36.304). The Department believes that this element -by- element safe harbor provision will go a long way toward mitigating the economic impact of the final rule on existing facilities owned or operated by small businesses. Indeed, as demonstrated in the Final RIA, the element -by- element safe harbor will provide substantial relief to small businesses that is estimated at $ 7.5 billion over the expected life of the final rule. Additional regulatory measures mitigating the economic impact of the final rule on title III - covered entities (including small businesses) include deletion of the proposed requirement for captioning of safety and emergency information on scoreboards at sporting venues, retention of the proposed path of travel safe harbor, extension of the compliance date of the 2010 Standards as applied to new construction and alterations from 6 months to 18 months after publication of the final rule, and, in response to public comments, modification of the triggering event for application of the 2010 Standards to new construction and alterations from a unitary approach (commencement of physical construction) to a two- pronged approach (date of last application for building permit or commencement of physical construction) depending on whether a building permit is or is not required for the type of construction at issue by State or local building authorities. See Appendix A discussions of captioning at sporting venues (§ 36.303), alterations and path of travel (§ 36.403), and compliance dates and triggering events for new construction and alterations (§ 36.406). Two sets of proposed alternative measures that would have potentially provided some cost savings to small businesses the safe harbor for qualified small businesses and reduced scoping for certain existing recreation facilities —were not adopted by the Department in the fmal rule. As discussed in more depth previously, the safe harbor for qualified small businesses was omitted from the fmal rule because the general safe harbor already provides significant relief for small businesses located in existing facilities, the proposed safe harbor provision lacked support from the small business community and no consensus emerged from business commenters concerning feasible bases for the final regulatory provision, and commenters noted practical considerations that would potentially make some small businesses incur greater expense or administrative burden. See Appendix A discussion of the safe harbor for qualified small businesses (§ 36.304). The Department also omitted the proposals to reduce scoping for certain existing recreation facilities in the final rule. While these proposals were not specific to small entities, they nonetheless might have mitigated the impact of the final rule for some small businesses that owned or operated existing facilities at which these recreational elements were located. See Appendix A discussion of reduced scoping for play areas and other recreation facilities (§ 36.304). The Department gave careful consideration to how best to insulate small businesses from overly burdensome barrier removal costs under the 2010 Standards for existing small play areas, swimming pools, and saunas, while still providing accessible and integrated recreation facilities that are of great importance to persons with disabilities. The Department concluded that the existing readily achievable barrier removal standard, rather than specific exemptions for these types of existing facilities, is the most efficacious method by which to protect small businesses. Once the final rule is promulgated, small businesses will also have a wealth of documents to assist them in complying with the 2010 Standards. For example, accompanying the fmal rule in the Federal Register is the Department's` `Analysis and Commentary on the 2010 ADA Standards for Accessible Design," which provides a plain language description of the revised scoping and technical requirements in these Standards and provides illustrative figures. The Department also expects to publish guidance specifically tailored to small businesses in the form of a small business compliance guide, as well as to publish technical assistance materials of general interest to all covered entities following promulgation of the final rule. Additionally, the Access Board has published a number of guides that discuss and illustrate application of the 2010 Standards to play areas and various types of recreation facilities. Executive Order 13132: Federalism Executive Order 13132, 64 FR 43255, 3 CFR, 2000 Comp., p. 206, requires executive branch agencies to consider whether a rule will have federalism implications. That is, the rulemaking agency must determine whether the rule is likely to have substantial direct effects on State and local governments, a substantial direct effect on the relationship between the Federal government and the States and localities, or a substantial direct effect on the distribution of power and responsibilities among the different levels of government. If an agency believes that a rule is likely to have federalism implications, it must consult with State and local elected officials about how to minimize or eliminate the effects. Title III of the ADA covers public accommodations and commercial facilities. These facilities are generally subject to regulation by different levels of government, including Federal, State, and local governments. The ADA and the 2010 http : //www.ada.gov /regs2010 /titl elll 2010/titlell' 2010 regulations.htm#a201 17/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities Standards set minimum civil rights protections for individuals with disabilities that in turn may affect the implementation of State and local laws, particularly building codes. The 2010 Standards address federalism concerns and mitigate federalism implications, particularly the provisions that streamline the administrative process for State and local governments seeking ADA code certification under title III. As a member of the Access Board, the Department was privy to substantial feedback from State and local governments throughout the development of the Board's 2004 guidelines. Before those guidelines were finalized as the 2004 ADA/ABA Guidelines, they addressed and minimized federalism concerns expressed by State and local governments during the development process. Because the Department adopted ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as part of the 2010 Standards, the steps taken in the 2004 ADA/ABA Guidelines to address federalism concerns are reflected in the 2010 Standards. The Department also solicited and received input from public entities in the September 2004 ANPRM and the June 2008 NPRM. Through the ANPRM and NPRM processes, the Department solicited comments from elected State and local officials and their representative national organizations about the potential federalism implications. The Department received comments addressing whether the ANPRM and NPRM directly affected State and local governments, the relationship between the Federal government and the States, and the distribution of power and responsibilities among the various levels of government. The rule preempts State laws affecting entities subject to the ADA only to the extent that those laws conflict with the requirements of the ADA, as set forth in the rule. National Technology Transfer and Advancement Act of 1995 The National Technology Transfer and Advancement Act of 1995 (NTTAA) directs that, as a general matter, all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, which are private, generally non - profit organizations that develop technical standards or specifications using well - defined procedures that require openness, balanced participation among affected interests and groups, fairness and due process, and an opportunity for appeal, as a means to carry out policy objectives or activities. Public Law 104— 113 section 12(d)(1) (15 U.S.C. 272 Note). In addition, the NTTAA directs agencies to consult with voluntary, private sector, consensus standards bodies and requires that agencies participate with such bodies in the development of technical standards when such participation is in the public interest and is compatible with agency and departmental missions, authorities, priorities, and budget resources. Id. section 12(d)1). The Department, as a member of the Access Board, was an active participant in the lengthy process of developing the 2004 ADAAG, on which the 2010 Standards are based. As part of this update, the Board has made its guidelines more consistent with model building codes, such as the IBC, and industry standards. It coordinated extensively with model code groups and standard- setting bodies throughout the process so that differences could be reconciled. As a result, an historic level of harmonization has been achieved that has brought about improvements to the guidelines, as well as to counterpart provisions in the IBC and key industry standards, including those for accessible facilities issued through the American National Standards Institute. Plain Language Instructions The Department makes every effort to promote clarity and transparency in its rulemaking. In any regulation, there is a tension between drafting language that is simple and straightforward and drafting language that gives full effect to issues of legal interpretation. The Department operates a toll -free ADA Information Line (800) 514- 0301(voice); (800) 514 -0383 (TTY) that the public is welcome to call at any time to obtain assistance in understanding anything in this rule. If any commenter has suggestions for how the regulation could be written more clearly, please contact Janet L. Blizard, Deputy Chief, Disability Rights Section, whose contact information is provided in the introductory section of this rule, entitled FOR FURTHER INFORMATION CONTACT. Paperwork Reduction Act The Paperwork Reduction Act of 1980 (PRA) requires agencies to clear forms and recordkeeping requirements with OMB before they can be introduced. 44 U.S.C. 3501 et seq. This rule does not contain any paperwork or recordkeeping requirements and does not require clearance under the PRA. Unfunded Mandates Reform Act Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1503(2), excludes from coverage under that Act any proposed or final Federal regulation that "establishes or enforces any statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or disability." Accordingly, this rulemaking is not subject to the provisions of the Unfunded Mandates Reform Act. List of Subjects for 28 CFR Part 36 Administrative practice and procedure, Buildings and facilities, Business and industry, Civil rights, Individuals with http : //www.ada.gov /regs2010 /title111 2010/titlelIl 2010 regulations.htm#a201 18/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities disabilities, Penalties, Reporting and recordkeeping requirements. •By the authority vested in me as Attorney General by law, including 28 U.S.C. 509 and 510, 5 U.S.C. 301, and section 306 of the Americans with Disabilities Act of 1990, Public Law 101 -336 (42 U.S.C. 12186), and for the reasons set forth in Appendix A to 28 CFR part 36, chapter I of title 28 of the Code of Federal Regulations is amended as follows: • 1 On September 25, 2008, President George W.Bush signed into law the Americans with Disabilities Amendments Act of2008 (ADA Amendments Act), Public Law 110 -325. The ADA Amendments Act amended the ADA definition of disability to clarify its coverage of persons with disabilities and to provide guidance on the application of the definition. This final rule does not contain regulatory language implementing the ADA Amendments Act. The Department intends to publish a supplemental rule to amend the regulatory definition of "disability" to implement the changes mandated by that law. 2 The analysis assumes these regulations will be in force for 15 years. Incremental costs and benefits are calculated for all construction, alterations, and barrier removal that is expected to occur during these 15 years. The analysis also assumes that any new or revised ADA rules enacted 15 years from now will include a safe harbor provision. Thus, any facilities constructed in year 14 of the final rules are assumed to continue to generate benefits to users, and to incur any operating or replacement costs for the life of these buildings, which is assumed to be 40 years. Title III Regulations Revised Final Title III Regulation with Integrated Text • This revised title III regulation integrates the Department's new regulatory provisions with the text of the existing title III regulation that was unchanged by the 2010 revisions. Part 36 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities (as amended by the final rule published on September 15, 2010) Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b). Subpart A — General § 36.101 Purpose. The purpose of this part is to implement title III of the Americans with Disabilities Act of 1990 (42 U.S.C. 12181), which prohibits discrimination on the basis of disability by public accommodations and requires places of public accommodation and commercial facilities to be designed, constructed, and altered in compliance with the accessibility standards established by this part. § 36.102 Application. (a) General. This part applies to any — (1) Public accommodation; • (2) Commercial facility; or (3) Private entity that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes. (b) Public accommodations. http.//www.ada.gov/regs2010/title111_2010/title111 2010_regul ati ons.htm #a201 19/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities (1) The requirements of this part applicable to public accommodations are set forth in subparts B, C, and D of this part. (2) The requirements of subparts B and C of this part obligate a public accommodation only with respect to the operations of a place of public accommodation. III (3) The requirements of subpart D of this part obligate a public accommodation only with respect to — (i) A facility used as, or designed or constructed for use as, a place of public accommodation; or (ii) A facility used as, or designed and constructed for use as, a commercial facility. (c) Commercial facilities. The requirements of this part applicable to commercial facilities are set forth in subpart D of this part. (d) Examinations and courses. The requirements of this part applicable to private entities that offer examinations or courses as specified in paragraph (a) of this section are set forth in § 36.309. (e) Exemptions and exclusions. This part does not apply to any private club (except to the extent that the facilities of the private club are made available to customers or patrons of a place of public accommodation), or to any religious entity or public entity. 36.103 Relationship P to other laws. (a) Rule of interpretation. Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 791) or the regulations issued by Federal agencies pursuant to that title. (b) Section 504. This part does not affect the obligations of a recipient of Federal financial assistance to comply with the requirements of section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and regulations issued by Federal agencies implementing section 504. (c) Other laws. This part does not invalidate or limit the remedies, rights, and procedures of any other Federal law State or Local laws (including State common law) that provide greater or equal protection for the rights of • individuals with disabilities or individuals associated with them. § 36.104 Definitions. For purposes of this part, the term - 1991 Standards means requirements set forth in the ADA Standards for Accessible Design, originally published on July 26, 1991, and republished as Appendix D to this part. 2004 ADAAG means the requirements set forth in appendices B and D to 36 CFR part 1191 (2009). 2010 Standards means the 2010 ADA Standards for Accessible Design, which consist of the 2004 ADAAG and the requirements contained in subpart D of this part. Act means the Americans with Disabilities Act of 1990 (Pub. L. 101 - 336, 104 Stat. 327, 42 U.S.C. 12101 - 12213 and 47 U.S.C. 225 and 611). Commerce means travel, trade, traffic, commerce, transportation, or communication — (1) Among the several States; (2) Between any foreign country or any territory or possession and any State; or (3) Between points in the same State but through another State or foreign country. Commercial facilities means facilities — (1) Whose operations will affect commerce; • (2) That are intended for nonresidential use by a private entity; and (3) That are not — (i) Facilities that are covered or expressly exempted from coverage under the Fair Housing Act of 1968, as amended (42 U.S.C. 3601 - 3631); http : //www.ada.gov /regs2010/titlell1 2010 /titlell' 2010_regulations.htm#a201 20/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities (ii) Aircraft; or (iii) Railroad locomotives, railroad freight cars, railroad cabooses, commuter or intercity passenger rail cars (including coaches, dining cars, sleeping cars, lounge cars, and food service cars), any other railroad cars described in section 242 of the Act or covered under title II of the Act, or railroad rights - of -way. For purposes of this definition, "rail" and "railroad" have the meaning given the term "railroad" in section 202(e) of the Federal Railroad Safety Act of 1970 (45 U.S.C. 431(e)). Current illegal use of drugs means illegal use of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem. Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services, as provided in § 36.208. Disability means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment. (1) The phrase physical or mental impairment means — (i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; (ii) Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities; (iii) The phrase physical or mental impairment includes, but is not limited to, such contagious and noncontagious diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism; (iv) The phrase physical or mental impairment does not include homosexuality or bisexuality. (2) The phrase major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, leaming, and working. (3) The phrase has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. (4) The phrase is regarded as having an impairment means — (i) Has a physical or mental impairment that does not substantially limit major life activities but that is treated by a private entity as constituting such a limitation; (ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by a private entity as having such an impairment. (5) The term disability does not include — i Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not > >P P � Y g resulting from physical impairments, or other sexual behavior disorders; (ii) Compulsive gambling, kleptomania, or pyromania; or (iii) Psychoactive substance use disorders resulting from current illegal use of drugs. Drug means a controlled substance, as defined in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812). Existing facility means a facility in existence on any given date, without regard to whether the facility may also be considered newly constructed or altered under this part. Facility means all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located. http:// www. ada. gov /regs2010 /titlelll_2010/titlelIl 2010 regulations.htm#a201 21/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities Housing at a place of education means housing operated by or on behalf of an elementary, secondary, undergraduate, or postgraduate school, or other place of education, including dormitories, suites, apartments, or other places of residence. Illegal use of drugs means the use of one or more drugs, the possession or distribution of which is unlawful under the Controlled Substances Act (21 U.S.C. 812). The term "illegal use of drugs" does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law. Individual with a disability means a person who has a disability. The term "individual with a disability" does not include an individual who is currently engaging in the illegal use of drugs, when the private entity acts on the basis of such use. 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). Place of public accommodation means a facility operated by a private entity whose operations affect commerce and fall within at least one of the following categories — (1) Place of lodging, except for an establishment located within a facility that contains not more than five rooms for rent or hire and that actually is occupied by the proprietor of the establishment as the residence of the proprietor. For purposes of this part, a facility is a "place of lodging" if it is — (i) An inn, hotel, or motel; or (ii) A facility that — (A) Provides guest rooms for sleeping for stays that primarily are short-term in nature (generally 30 days or less) where the occupant does not have the right to return to a specific room or unit after the conclusion of his or her stay; and (B) Provides guest rooms under conditions and with amenities similar to a hotel, motel, or inn, including the following — (1) On- or off -site management and reservations service; (2) Rooms available on a walk -up or call -in basis; (3) Availability of housekeeping or linen service; and (4) Acceptance of reservations for a guest room type without guaranteeing a particular unit or room until check -in, and without a prior lease or security deposit. (2) A restaurant, bar, or other establishment serving food or drink; (3) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; (4) An auditorium, convention center, lecture hall, or other place of public gathering; (5) A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (6) A laundromat, dry- cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; (7) A terminal, depot, or other station used for specified public transportation; (8) A museum, library, gallery, or other place of public display or collection; (9) A park, zoo, amusement park, or other place of recreation; (10) A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (11) A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and (12) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation. http:// www. ada. gov /regs2010 /titlelll_2010 /titlelIl 2010_regulations.htm #a201 22/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities Private club means a private club or establishment exempted from coverage under title II of the Civil Rights Act of 1964 (42 i J U.S.C. 2000a(e)). Private entity means a person or entity other than a public entity. Public accommodation means a private entity that owns, leases (or leases to), or operates a place of public accommodation. Public entity means — (1) Any State or local government; (2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (3) The National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act). (45 U.S.C. 541) Qualified interpreter means an interpreter who, via a video remote interpreting (VRI) service or an on -site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued - language transliterators. Qualified reader means a person who is able to read effectively, accurately, and impartially using any necessary specialized vocabulary. Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable factors to be considered include — (1) The nature and cost of the action needed under this part; (2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site; (3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity; (4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and (5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity. Religious entity means a religious organization, including a place of worship. Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non - violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well - being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. Specified public transportation means transportation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis. State means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands. Undue burden means significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered include — http: //www.ada.gov /regs2010 /titl el11_2010/ti tl el 11_2010_r egul ati ons.htm#a201 23/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities (1) The nature and cost of the action needed under this part; (2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site; (3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity; (4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and (5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity. Video remote interpreting (VRI) service means an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high- speed, wide - bandwidth video connection that delivers high - quality video images as provided in § 36.303(f). 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). §§ 36.105 — 36.199 [Reserved] Subpart B — General Requirements § 36.201 General. (a) Prohibition of discrimination. No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any private entity who owns, leases (or leases to), or operates a place of public accommodation. (b) Landlord and tenant responsibilities. Both the landlord who owns the building that houses a place of public accommodation and the tenant who owns or operates the place of public accommodation are public accommodations subject to the requirements of this part. As between the parties, allocation of responsibility for complying with the obligations of this part may be determined by lease or other contract. § 36.202 Activities. (a) Denial of participation. A public accommodation shall not subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, , rivile es advantages, or accommodations of a place of public accommodation. p g g (b) Participation in unequal benefit. A public accommodation shall not afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals. (c) Separate arate benefit. A public accommodation shall not provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others. (d) Individual or class of individuals. For purposes of paragraphs (a) through (c) of this section, the term "individual or class of individuals" refers to the clients or customers of the public accommodation that enters into the contractual, licensing, or other arrangement. § 36.203 Integrated settings. (a) General. A public accommodation shall afford goods, services, facilities, privileges, advantages, and accommodations to an individual with a disability in the most integrated setting appropriate to the needs of the http : //www.ada.gov /regs2010/titlell1 2010 /titlelli 2010 regulations.htm#a201 24/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities individual. (b) Opportunity to participate. Notwithstanding the existence of separate or different programs or activities provided in accordance with this subpart, a public accommodation shall not deny an individual with a disability an opportunity to participate in such programs or activities that are not separate or different. (c) Accommodations and services. (1) Nothing in this part shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit available under this part that such individual chooses not to accept. (2) Nothing in the Act or this part authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual. § 36.204 Administrative methods. A public accommodation shall not, directly or through contractual or other arrangements, utilize standards or criteria or methods of administration that have the effect of discriminating on the basis of disability, or that perpetuate the discrimination of others who are subject to common administrative control. § 36.205 Association. A public accommodation shall not exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association. § 36.206 Retaliation or coercion. (a) No private or public entity shall discriminate against any individual because that individual has opposed any act or practice made unlawful by this part, or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Act or this part. (b) No private or public entity shall coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the Act or this part. (c) Illustrations of conduct prohibited by this section include, but are not limited to: (1) Coercing an individual to deny or limit the benefits, services, or advantages to which he or she is entitled under the Act or this part; (2) Threatening, intimidating, or interfering with an individual with a disability who is seeking to obtain or use the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation; (3) Intimidating or threatening any person because that person is assisting or encouraging an individual or group entitled to claim the rights granted or protected by the Act or this part to exercise those rights; or (4) Retaliating against any person because that person has participated in any investigation or action to enforce the Act or this part. § 36.207 Places of public accommodation located in private residences. (a) When a place of public accommodation is located in a private residence, the portion of the residence used exclusively as a residence is not covered by this part, but that portion used exclusively in the operation of the place of public accommodation or that portion used both for the place of public accommodation and for residential purposes is covered by this part. (b) The portion of the residence covered under paragraph (a) of this section extends to those elements used to enter the place of public accommodation, including the homeowner's front sidewalk, if any, the door or entryway, and 411 hallways; and those portions of the residence, interior or exterior, available to or used by customers or clients, including restrooms. § 36.208 Direct th reat. (a) This part does not require a public accommodation to permit an individual to participate in or benefit from the http : //www.ada.gov /regs2010/titielll 2010 /titJelll 2010_regulations.htm#a201 25/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities • goods, services, facilities, privileges, advantages and accommodations of that public accommodation when that individual poses a direct threat to the health or safety of others. (b) In determining whether an individual poses a direct threat to the health or safety of others, a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current • medical knowledge or on the best available objective evidence, to ascertain: The nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. § 36.209 Illegal use of drugs. (a) General. (1) Except as provided in paragraph (b) of this section, this part does not prohibit discrimination against an individual based on that individual's current illegal use of drugs. (2) A public accommodation shall not discriminate on the basis of illegal use of drugs against an individual who is not engaging in current illegal use of drugs and who — (i) Has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully; (ii) Is participating in a supervised rehabilitation program; or (iii) Is erroneously regarded as engaging in such use. (b) Health and drug rehabilitation services. (1) A public accommodation shall not deny health services, or services provided in connection with drug rehabilitation, to an individual on the basis of that individual's current illegal use of drugs, if the individual is otherwise entitled to such services. (2) A drug rehabilitation or treatment program may deny participation to individuals who engage in illegal use of drugs while they are in the program. S (c) Drug testing. (1) This part does not prohibit a public accommodation from adopting or administering reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now engaging in current illegal use of drugs. (2) Nothing in this paragraph (c) shall be construed to encourage, prohibit, restrict, or authorize the conducting of testing for the illegal use of drugs. § 36.210 Smoking. This part does not preclude the prohibition of, or the imposition of restrictions on, smoking in places of public accommodation. § 36.211 Maintenance of accessible features. (a) A public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable b t y y persons with disabilities by the Act or this part. q (b) This section does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs. (c) If the 2010 Standards reduce the technical requirements or the number of required accessible elements below the number required by the 1991 Standards, the technical requirements or the number of accessible elements in a facility subject to this part may be reduced in accordance with the requirements of the 2010 Standards. § 36.212 Insurance. • (a) This part shall not be construed to prohibit or restrict - (1) An insurer, hospital or medical service company, health maintenance organization, or any agent, or entity that administers benefit plans, or similar organizations from underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law; or (2) A person or organization covered by this part from establishing, sponsoring, observing or http : / /www.ada.gov /regs2010 /titlelll 2010/titlelll 2010_regulations.htm#a201 26/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law; or (3) A person or organization covered by this part from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that is not subject to State laws that regulate insurance. (b) Paragraphs (a) (1), (2), and (3) of this section shall not be used as a subterfuge to evade the purposes of the Act or this part. (c) A public accommodation shall not refuse to serve an individual with a disability because its insurance company conditions coverage or rates on the absence of individuals with disabilities. § 36.213 Relationship of subpart B to subparts C and D of this part. Subpart B of this part sets forth the general principles of nondiscrimination applicable to all entities subject to this part. Subparts C and D of this part provide guidance on the application of the statute to specific situations. The specific provisions, including the limitations on those provisions, control over the general provisions in circumstances where both specific and general provisions apply. §§ 36.214 — 36.299 [Reserved] Subpart C — Specific Requirements § 36.301 Eligibility criteria. (a) General. A public accommodation shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered. (b) Safety. A public accommodation may impose legitimate safety requirements that are necessary for safe operation. Safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities. (c) Charges. A public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids, barrier removal, alternatives to barrier removal, and reasonable modifications in policies, practices, or procedures, that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part. § 36.302 Modifications in policies, practices, or procedures. (a) General. A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations. (b) Specialties — (1) General. A public accommodation may refer an individual with a disability to another public accommodation, if that individual is seeking, or requires, treatment or services outside of the referring public accommodation's area of specialization, and if, in the normal course of its operations, the referring public accommodation would make a similar referral for an individual without a disability who seeks or requires the same treatment or services. (2) Illustration — medical specialties. A health care provider may refer an individual with a disability to another provider, if that individual is seeking, or requires, treatment or services outside of the referring provider's area of specialization, and if the referring provider would make a similar referral for an individual without a disability who seeks or requires the same treatment or services. A physician who specializes in treating only a particular condition cannot refuse to treat an individual with a disability for that condition, but is not required to treat the individual for a different condition. (c) Service animals. (1) General. Generally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability. http://www.ada.gov/regs2010/titie111_2010/title111 2010 regulations.htm#a201 27/193 Chapter 32 • The Americans with Disabilities Act and the Fair Housing Act 32 -100 Introduction Title II of the Americans with Disabilities Act ( "ADA ") provides: [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. 5 12132. Public entities include counties, cities and towns. 42 U.S.C. 5 12131(A). Zoning qualifies as a public program or service and the enforcement of a zoning ordinance constitutes an activity of a locality within the meaning of Title II. A Helping Hand v. Baltimore County, 515 F.3d 356 (4th Cir. 2008); see also START, Inc. v. Baltimore County, 295 F. Supp. 2d 569 (D. Md. 2003) (the administration of zoning laws is a "service, program, or activity" within the meaning of the ADA). A locali ' is re • uired to reasonabl' accommodate disabled • ersons b' mo • • • • its zo . • . • . olicies • ractices and • rocedures and ma not in en.. n . ' • • u '• . - • • . • - • • - • • Radian v. Village of Wilmette, 269 F.3d 831 (7th Cir. 2001). 28 C.F.R. § 35.130(b)(7) states: A ublic entity shall make rea sonable modifications in olicies, practices, or procedures when the p ty p P P modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, • program, or activity. Although the federal government has stated that the Fair Housing Act ( "FHA ") does not preempt local zoning laws, the Act nonetheless can preempt the way a locality's zoning regulations are administered. Under the FHA, it is unlawful to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of a person residing in or intending to reside in that dwelling. 42 U.S .0 5 3604(/)(1)(B). Discrimination under the FHA includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. 5 3604(/)(3)(B). A handicap under the FHA is the same as a disability under the Americans with Disabilities Act. Dadian, supra. See Virginia Code 5 51.5-45, which pertains to the rights of persons with disabilities to housing accommodations. 32 -200 The ADA protects qualified individuals with a disability Under the ADA, a person is a qualffied individual with a disability if he or she has: (1) a mental or physical impairment that substantially limits a major life activity; (2) a record of such an impairment; or (3) is regarded as having such an impairment. 42 U.S .C. 5 12102(2). The term mental or physical impairment may include conditions such as blindness, hearing impairment, mobility impairment, HIV infection, mental retardation, alcoholism, drug addiction, chronic fatigue, learning disability, head injury, and mental illness. The term major life activity may include seeing, hearing, walking, breathing, performing manual tasks, caring for one's self, learning, speaking, or working. Joint Statement of the Department of Justice and the Department of Housing and Urban Development on Group Homes, Local Land Use, and the Fair HousingAct, dated August 18, 1999. An individual may be regarded as having an impairment, regardless of whether or not he in fact has a substantially limiting impairment. A He/ping Hand v. Baltimore County, 515 F.3d 356 (4th Cir. 2008) (on appeal from trial court granting a Rule 50 motion in favor of the clinic on this issue, holding that • the clients of a methadone clinic could not be regarded as significantly impaired in a major life activity where they were regarded as criminals and undesirables, but were not necessarily regarded as significantly impaired in their 32 -1 L The Albemarle County Land Use Law Handbook N Kamptner /March 2014 ability to work, learn, care for themselves, or interact with others); see Cline v. Wal-Mart Stores, Inc., 144 F.3d 294 (4th • Cir. 1998). The term qualified individual with a disability does not include persons who pose "a significant risk to the health or safety of others by virtue of the disability that cannot be eliminated by reasonable accommodation." Doe v. University of Maryland Medical System Corporation, 50 F.3d 1261 (4th Cir. 1995). It also does not include current users of illegal controlled substances, persons convicted for the illegal manufacture or distribution of a controlled substance, sex offenders, and juvenile offenders. See Joint Statement, supra. Examples of disabilities from zoning cases in which the ADA may be at issue include drug and alcohol rehabilitation facilities, mental health facilities, and physical disabilities that prohibit the reasonable use of a dwelling. See section 32 -220 for a discussion of the cases considering these disabilities. 32 - 210 A locality must reasonably accommodate a qualifies' individual with a disability in the administration of its zoning regulations A locality is required to reasonably accommodate disabled persons by modifying its zoning policies, practices and procedures and may not intentionally discriminate against disabled persons. Dadian v. Village of Wilmette, 269 F.3d 831 (7th Cir. 2001). 28 C.F.R. § 35.130(b)(7) states: A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. The United States Department of Justice explains this requirement as follows: • [Localities] are required to make reasonable modifications to policies, practices, or procedures to prevent discrimination on the basis of disability. Reasonable modifications can include modifications to local laws, ordinances, and regulations that adversely impact people with disabilities. For example, it may be a reasonable modification to grant a variance for zoning requirements and setbacks. In addition, [localities] may consider granting exceptions to the enforcement of certain laws as a form of reasonable modification. For example, a municipal ordinance banning animals from city health clinics may need to be modified to allow a blind individual who uses a service animal to bring the animal to a mental health counseling session. The ADA and City Governments: Common Problems, U.S. Department of Justice, Civil Rights Division, Disability Rights Section. Whether a requested accommodation is reasonable is highly fact - specific and determined on a case -by -case basis by balancing the cost to the locality and the benefit to the disabled person. Dadian, supra. Whether a requested accommodation is necessary requires a showing that the desired accommodation will affirmatively enhance a disabled person's quality of life by ameliorating the effects of the disability. Dadian, supra. The focus is on whether the accommodation in the case at hand would be so at odds with the purposes behind the rule that it would be a fundamental and unreasonable change. Dadian, supra (allowing front driveway access to elderly landowners' home, one of whom suffered from osteoporosis and had difficulty walking, was not so at odds with village's general prohibition against such driveways and would not cause an unreasonable change to the ordinance because the plaintiffs were not requesting a change to the ordinance itself, but application of the hardship exception in their case). 28 C.F.R 35.130(b)(7). Reasonable accommodation is not mandated when zoning laws are applied in a non - discriminatory manner. For • example, the Department of Justice has explained to a complainant why a city's denial of a rezoning that would have allowed an office use in a predominantly single family neighborhood did not violate the ADA. The complainant was 32 -2 The Albemarle County Land Use Law Handbook Kamptner /March 2014 the owner of a consulting firm that employed 5 people, two of whom had disabilities (one recovering from • alcoholism; the other having chronic depression) who sought the rezoning to relocate his business in the neighborhood. The letter explains: The evidence shows that the City's decision to deny the rezoning application for your property has the same effect on your employees without disabilities as it does on your employees with disabilities. Further, the evidence shows that the City has an established policy of maintaining the area where your property is located as a predominantly single family area, and that this policy has the same effect on people without disabilities as it does on people with disabilities. The evidence shows that the City's decision to deny your rezoning application was made for reasons that are not discriminatory under the ADA. Therefore, we have determined that no violation of title II occurred. Letter dated March 14, 1994, Coordination and Review Section of the Civil Rights Division of the United States Department of Justice. 32-220 Examples of typical zoning cases in which the ADA is in issue Following are some examples of the types of cases that appear to dominate the zoning case law in which the ADA is in issue: • I .. • •.. ••• •-...' • '... .. •... The anti-discrimination provision of the ADA prohibits zoning decisions by a locality that discriminate against drug and alcohol rehabilitation programs, the clients of which are "qualified individuals with a disability." MX Group, Inc. v. City of Covington, 293 F.3d 326, 345 (6th Cir. 2002) (agreeing with the trial court's finding that "the blanket prohibition of all methadone clinics from the entire city is discriminatory on its face. "); B ay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d 725 (9th • Cir. 1999) (holding that the ADA applied to zoning ordinance barring methadone clinics within 500 feet of residential areas); Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997) (holding that the ADA applies to zoning decisions involving a drug and alcohol rehabilitation center); Habit Management, Inc. v. City of Lynn, 235 F. Supp. 2d 28 (D.Mass. 2002) (no showing that the placement of methadone clinics in industrial or business zones poses any significant risk); A Helping Hand v. Baltimore County, 515 F.3d 356 (4th Cir. 2008). • Mental health facilities. The anti- discrimination provision of the ADA applies to mental health facilities. Pathways Psychological v. Town ofLeonardtown, 133 F. Supp. 2d 772 (D.Md. 2001). • Variance from regulations to allow reasonable use of home. The anti- discrimination provision of the ADA prohibits zoning decisions by a locality that fail to reasonably accommodate persons with a disability to allow them the same housing opportunities without a disability. In Trvvato v. City of Manchester, 992 F. Supp. 493 (D.N.H. 1997), a mother and daughter who both had muscular dystrophy were denied a variance that would allow them to build a paved parking space in the front of their home. The court found that the denial of the paved parking space adversely affected the plaintiffs' use and enjoyment of their home, and that their request was reasonable. In Dadian v. Village of Wilmette, 269 F.3d 831 (7th Cir. 2001), an elderly couple, one of whom suffered from osteoporosis and had difficulty walking, sought a hardship exception from the village's prohibition against front driveway accesses. The court found that in denying the permit, the village failed to provide a reasonable accommodation from its regulations. • ,a, ie - or ra to .rvvide access to buildin'. If a zoning ordinance requires a certain setback between a business entrance and a curb, but the business must encroach into the setback to ramp its entrance, the zoning authority may be required to issue a variance as a reasonable modification to the setback regulations. ADA Best Practices Tool Kit for State and Local Governments (last updated September 14, 2009) (granting a variance to allow a • ramp to be built in a setback is a reasonable modification of a locality's rules and policies to avoid discrimination against people with disabilities). Thus, the zoning procedures must allow for some process whereby requests for 32 -3 The Albemarle County Land Use Law Handbook Kamptner /March 2014 exemptions or special permits for such purposes may be considered. These requests must be granted where • reasonable. This section has provided only a brief overview of the application of the ADA to local zoning regulations. Zoning issues arising under the ADA may also trigger the application of the Fair Housing Act. 32 -300 The FHA prohibits discriminatory housing practices The FHA operates to invalidate "any law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice... " 42 U.S.C. 5 3615. The Joint Statement of the Department of Justice and the Department of Housing and Urban Development on Group Homes, Local Land Use, and the FairHousingAct, dated August 18, 1999, explains that the FHA prohibits localities from: • Using land use policies or actions that treat groups of persons with disabilities less favorably than groups of non - disabled persons. An example of this situation would be an ordinance prohibiting housing for persons with disabilities or a specific type of disability, such as mental illness, from locating in a particular area, while allowing other groups of unrelated individuals to live together in that area. • Taking action against, or denying a permit, for a home because of the disability of individuals who live or would live there. An example of this situation would be a decision that denied a building permit for a home because it was intended to provide housing for persons with mental retardation. • Refusing to make reasonable accommodations in land use and zoning policies and procedures where such accommodations may be necessary to afford persons or groups of persons with disabilities an equal opportunity to use and enjoy housing. • A locality will most often face a challenge to its zoning laws when they are applied against handicapped persons in such a way that: (1) handicapped persons are prevented from using and enjoying their home in the same manner as non - handicapped persons, Dadian v. Village of Wilmette, 269 F.3d 831 (7th Cir. 2001) or (2) the locality defines family in a way so that persons with handicaps are disqualified from living in single family residential neighborhoods. Dr. Gertrude A. Barber Center, Inc. v. Peters Township, 273 F. Supp. 2d 643 (W.D.Pa. 2003). 32 -310 The use and enjoyment of the home The FHA prohibits zoning regulations and decisions that fail to reasonably accommodate persons with a handicap to allow them the same housing opportunities without a handicap. In Trovato v. of Manchester, 992 F. Supp. 493 (D.N.H. 1997), a mother and daughter who both had muscular dystrophy were denied a variance that would have allowed them to build a paved parking space in the front of their home. The court found that the denial of the paved parking space adversely affected the plaintiffs' use and enjoyment of their home, and that their request was reasonable. In Dadian v. Village of Wilmette, 269 F.3d 831 (7th Cir. 2001), an elderly couple, one of whom suffered from osteoporosis and had difficulty walking, sought a hardship exception from the village's prohibition against front driveway accesses. The court found that in denying the permit, the village failed to provide a reasonable accommodation from its regulations. These cases are also discussed in the context of the ADA in section 32 -220. • 32 -4 The Albemarle County Land Use Law Handbook Kamptner /March 2014 32 -320 Allowing persons with disabilities to live in facilities within single family residential • neighborhoods The United States Supreme Court has instructed that zoning regulations describing who or how many people may compose a family unit so as to include any number of people related by blood, marriage or adoption but no more than a limited number of unrelated people living together as a household unit, are subject to review under the FHA. of Edmonds v. Oxford House, 514 U.S. 725, 115 S. Ct. 1776 (1995); see 42 U.S.C. 5 3607(b)(1), exempting from FHA scrutiny reasonable local, state, or federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling, and removing from the FHA's scope only total occupancy limits, i.e., numerical ceilings that serve to prevent overcrowding in living quarters. In multiple cases, the courts have found a violation of the FHA where localities attempted to prevent or restrict persons with disabilities from living in the single family -zoned homes of their choice, even when the occupancy did not meet the locality's definition of a family under the applicable zoning ordinances. See, e.g., Oxford House, Inc. v. Town of BaWon, 819 F. Supp. 1179 (E.D.N.Y. 1993) (violation of the FHA even though the occupancy did not meet the town's definition of family and was not the "functional and factual equivalent of a natural family" as provided under the zoning ordinance); Oxford House v. Township of Cherry Hill, 799 F. Supp. 450 (D.N.J. 1992) (proof of permanency and stability not required for related occupants, but required for nonrelated occupants, was held to be discriminatory); Oxford House Evergreen v. City of Plairilield, 769 F. Supp. 1329 (D.N.J. 1991) (occupancy limitations were discriminatory); United States v. Town of Garner, 720 F. Supp. 2d 721 ( E.D.N.C. 2010) (in denying town's motion to dismiss on ripeness grounds, the court held that the town may have constructively denied Oxford House's reasonable accommodation request either by granting an accommodation in the form of a zoning text amendment that left the proposed use as still being in violation of the zoning ordinance or by failing to act on subsequent requests for reasonable accommodation). The purpose of the FHA's requirement for reasonable accommodation is to facilitate the integration of persons • with disabilities into all communities. Dr. Gertrude A. Barber Center, Inc v. Peters Township, 273 F. Supp. 2d 643 (W.D. Pa. 2003). Thus, the FHA "prohibits the enforcement of zoning ordinances and local housing policies in a manner that denies people with disabilities access to housing on par with that of those who are not disabled." Oconomowoc Residential Programs, Inc. v. of Milwaukee, 300 F.3d 775, 783 (7th Cir. 2002). Note that Virginia Code § 15.2 -2291 imposes a limitation on a locality's zoning power by requiring that a zoning ordinance consider a residential facility in which no more than eight mentally ill, mentally retarded, or developmentally disabled persons reside, with one or more resident counselors or other staff persons, as residential occupancy by a single family. A residential facilio means any group home or other residential facility for which the Department of Behavioral Health and Developmental Services is the licensing authority. Virginia Code 5 15.2 - 2291(A). A zoning ordinance may not impose conditions more restrictive than those imposed on residences occupied by persons related by blood, marriage, or adoption. Virginia Code 5 15.2- 2291(A). A group home serving eight unrelated adults who do not meet these criteria does not qualify under Virginia Code § 15.2- 2291(A) for treatment as a single - family residence insofar as zoning is concerned. 1995 Va. Op. Aty. Gen. 286. 32 -330 Examples provided by the Department of Justice and the Department of Housing and Urban Development The Joint Statement of the Department of Justice and the Department of Housing and Urban Development on Group Homes, Local Land Use, and the Fair HousingAct, dated August 18, 1999, provides several useful examples as to how the FHA applies to zoning regulations: • Regulations must treat groups of unrelated persons equally: Local zoning and land use laws that treat groups of unrelated persons with disabilities less favorably than similar groups of unrelated persons without disabilities violate the FHA. For example, assume that a city's zoning ordinance defines a family to include up to six unrelated persons • living together as a household unit, and gives such a group of unrelated persons the right to live in any zoning district without special permission. If that ordinance also disallows a group home for six or fewer people with 32 -5 The Albemarle County Land Use Law Handbook Kamptner /March 2014 disabilities in a certain district or requires the home to seek a use permit, the ordinance's requirements would • conflict with the FHA because it treats persons with disabilities differently than persons without disabilities. • Regulations may generally limit the number of unrelated persons who may live together; reasonable accommodation may be required: A locality may generally restrict the ability of groups of unrelated persons to live together as long as the restrictions are imposed on all such groups. Thus, in the case where a family is defined to indude up to six unrelated people, an ordinance would not, on its face, violate the FHA if a group home for seven people with disabilities was not allowed to locate in a single family zoned neighborhood, because a group of seven unrelated people without disabilities would also be disallowed. However, as discussed below, because persons with disabilities are also entitled to request reasonable accommodations in rules and policies, the group home for seven persons with disabilities would have to be given the opportunity to seek an exception or waiver. If the criteria for reasonable accommodation are met, the permit would have to be given in that instance, but the ordinance would not be invalid in all circumstances. • Regulations may impose on group homes the same restrictions as on other groups of unrelated persons; reasonable accommodation may be required Even though a zoning ordinance imposes on group homes the same restrictions it imposes on other groups of unrelated people, a locality may be required, in individual cases and when requested to do so, to grant a reasonable accommodation to a group home for persons with disabilities. For example, it may be a reasonable accommodation to waive a setback requirement so that a paved path of travel can be provided to residents who have mobility impairments. A similar waiver might not be required for a different type of group home where residents do not have difficulty negotiating steps and do not need a setback in order to have an equal opportunity to use and enjoy a dwelling. • Reasonable accommodation determined on a case -by -case basic. Not all requested modifications of rules or policies are reasonable. Whether a particular accommodation is reasonable depends on the facts, and must be decided on a case -by -case basis. What is reasonable in one circumstance may not be reasonable in another. For example, assume that a locality does not allow groups of four or more unrelated people to live together in a single - family • neighborhood. A ou home for four adults with mental retardation would very likely be able to show that it group rY Y will have no more impact on parking, noise, utility use, and other typical concerns of zoning than an p p � tY t9p g "ordinary family." In this circumstance, there would be no undue burden or expense for the locality nor would the single - family character of the neighborhood be fundamentally altered. Granting an exception or waiver to the group home in this circumstance would not invalidate the ordinance. The locality would still be able to keep groups of unrelated persons without disabilities from living in single - family neighborhoods. • Reasonable accommodation not required if significant burden on the locality or fundamental change to the neighborhood A 50 -bed nursing home would not ordinarily be considered an appropriate use in a single- family neighborhood, for obvious reasons having nothing to do with the disabilities of its residents. Such a facility might or might not impose significant burdens and expense on the community, but it would likely create a fundamental change in the single- family character of the neighborhood. On the other hand, a nursing home might not create a "fundamental change" in a neighborhood zoned for multi - family housing. The scope and magnitude of the modification requested, and the features of the surrounding neighborhood are among the factors that would be taken into account in determining whether a requested accommodation is reasonable. • Whether a locality can assure that a neighborhood does not have more than its fair share ofgrnup homes: The Department of Justice and HUD take the position, and most courts that have addressed the issue agree, that density restrictions are generally inconsistent with the FHA. However, if a neighborhood came to be composed largely of group homes, that could adversely affect individuals with disabilities and would be inconsistent with the objective of integrating persons with disabilities into the community. Especially in the licensing and regulatory process, it is appropriate to be concerned about the setting for a group home. A consideration of over- concentration could be considered in this context. This objective does not, however, justify requiring separations which have the effect of foredosing group homes from locating in entire neighborhoods. • 32 -6 The Albemarle County Land Use Law Handbook Kampmer /March 2014 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities Skip navigation 1 PDF version • Americans with Disabilities Act Title 111 Regulations Part 36 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities (as amended by the final rule published on September 15, 2010) Table of Contents Supplementary Information Revised Final Title III Regulation with Integrated Text Subpart A -- General 36.101 Purpose. 36.102 Application. • 36.103 Relationship to other laws. 36.104 Definitions. 36.105 -- 36.199 Reserved Subpart B -- General Requirements 36.201 General. 36.202 Activities. 36.203 Integrated settings. 36.204 Administrative methods. 36.205 Association. 36.206 Retaliation or coercion. 36.207 Places of public accommodations located in private residences. 36.208 Direct threat. 36.209 Illegal use of drugs. 36.210 Smoking. 36.211 Maintenance of accessible features. 36.212 Insurance. 36.213 Relationship of subpart B to subparts C and D of this part. 36.214 -- 36.299 [Reserved Subpart C -- Specific Requirements 36.301 Eligibility criteria. 36.302 Modifications in policies, practices, or procedures. • 36.303 Auxiliary aids and services. 36.304 Removal of barriers. 36.305 Alternatives to barrier removal. 36.306 Personal devices and services. 36.307 Accessible or special goods. 36.308 Seating in assembly areas. http: //www.ada.gov /regs2010 /titlelll_ 2010 / titlelll _2010_regulations.htm#a201 1/193 3/3/2015 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities 36.309 Examinations and courses. 36.310 Transportation provided by public accommodations. 36.311 Mobility Devices. 36.312 -- 36.399 [Reserved' • Subpart D -- New Construction and Alterations 36.401 New construction. 36.402 Alterations. 36.403 Alterations: Path of travel. 36.404 Alterations: Elevator exemption. 36.405 Alterations: Historic preservation. 36.406 Standards for new construction and alterations. 36.407 -- 36.499 [Reserved" Subpart E -- Enforcement 36.501 Private suits. 36.502 Investigations and compliance reviews. 36.503 Suit by the Attorney General. 36.504 Relief. 36.505 Attorneys fees. 36.506 Alternative means of dispute resolution. 36.507 Effect of unavailability of technical assistance. 36.508 Effective date. 36.509 -- 36.599 [Reserved" Subpart F -- Certification of State Laws or Local Building Codes 36.601 Definitions. 36.602 General rule. 36.603 Preliminary determination. (Redesignated from Section 36.604) 36.604 Procedure following preliminary determination of equivalency. (Redesignated from Section 36.605). 36.605 Procedure following preliminary determination of equivalency (Redesignated from 36.606). 36.606 Effect of certification. (Redesignated from 36.607). 36.607 Guidance concerning model codes. (Redesignated from section 36.608) 2010 Guidance and Section -by- Section Analysis 1991 Preamble and Section -by- Section Analysis Title 1 Regulations 1n ` i i`3i ,li.i'. .:.j DEPARTMENT OF JUSTICE • 28 CFR Part 36 [CRT Docket No. 106; AG Order No. 3181— 2010] RIN 1190 —AA44 http: / /www.ada.gov /regs2010 /ti tl el I I_ 2010 / tit' e1I1_2010_regul ati ons.htm #a201 2/193 I • ARE YOU IN RECOVERY FROM ALCOHOL OR DRUG PROBLEMS? o w y our R ights • coo/ICES , U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES • 1 - Substance Abuse and Mental Health Services Administration �(! Center for Substance Abuse Treatment 4 Vd:I(1 www.samhsa.gov • ARE YOU IN • RECOVERY FROM ALCOHOL OR DRUG PROBLEMS? ®w yo ur R ights This brochure will help you: • KNOW YOUR RIGHTS UNDER FEDERAL LAWS THAT PROTECT YOU FROM DISCRIMINATION IN - - EMPLOYMENT AND JOB TRAINING • - HOUSING - GOVERNMENT SERVICES AND PROGRAMS - HEALTH CARE AND OTHER PUBLIC ACCOMMODATIONS - EDUCATION. • KNOW THE LEGAL CONSEQUENCES OF SUBSTANCE USE - RELATED CONDUCT THAT MAY LIMIT YOUR RIGHTS AND OPPORTUNITIES IN AREAS SUCH AS - - PUBLIC HOUSING AND OTHER FEDERALLY ASSISTED HOUSING - FEDERALLY FUNDED PUBLIC ASSISTANCE AND FOOD STAMPS - FEDERAL STUDENT LOANS AND MD. • KNOW WHAT YOU CAN DO TO - - PREVENT OR REMEDY VIOLATIONS OF YOUR RIGHTS UNDER FED- ERAL NON - DISCRIMINATION LAWS - OVERCOME LEGAL BARRIERS THAT OTHER LAWS MAY IMPOSE DUE TO PAST OR CURRENT SUBSTANCE USE - RELATED CONDUCT, INCLUDING CONVICTIONS FOR SUBSTANCE USE OFFENSES. 3 THE FEDERAL NON - DISCRIMINATION LAWS THAT • PROTECT YOU Q: I am in recovery from substance abuse, but I still face discrim- ination because of my addiction history. Does any law protect me? A.: Yes. Federal civil rights laws prohibit discrimination in many areas of life against qualified "individuals with disabilities." Many people with past and current alcohol problems and past drug use disorders, including those in treatment for these illnesses, are protected from discrimination by: • The Americans with Disabilities Act (ADA) • The Rehabilitation Act of 1973 • The Fair Housing Act (FHA) and • The Workforce Investment Act (WIA). WHO IS PROTECTED? The non - discrimination laws discussed in this brochure protect individuals with a "disability." Under these Federal laws, an ID individual with a "disability" is someone who — - has a current "physical or mental impairment" that "sub- stantially limits" one or more of that person's "major life activities;' such as caring for one's self, working, etc. - has a record of such a substantially limiting impairment Y g P or - is regarded as having such an impairment. • Whether a particular person has a "disability" is decided on an individualized, case -by -case basis. • Substance use disorders (addiction) are recognized as impairments that can and do, for many individuals, sub- stantially limit the individual's major life activities. For this reason, many courts have found that individuals experi- encing or who are in recovery from these conditions are individuals with a "disability" protected by Federal law. • To be protected as an individual with a "disability" under • 4 Federal non - discrimination laws, a person must show that his or her addiction substantially limits (or limited, in the • past) major life activities. • People wrongly believed to have a substance use disorder (in the past or currently) may also be protected as individu- als "regarded as" having a disability. WHO IS NOT PROTECTED? • People who currently engage in the illegal use of drugs are not protected under these non - discrimination laws, except that individuals may not be denied health services (includ- ing drug rehabilitation) based on their c, rrent illegal use of drugs if they are otherwise entitled to those services. • People whose use of alcohol or drugs poses a direct threat —a significant risk of substantial harm —to the health or safety of others are not protected. • People whose use of alcohol or drugs does not significantly impair a major life activity are not protected (unless they • show they have a "record of" or are "regarded as" having a substance use disorder— addiction —that is substantially limiting). WHAT IS, AND IS NOT, ILLEGAL DISCRIMINATION? • Discriminating against someone on the basis of his or her disability —for example, just because he has a past drug addiction or she is in an alcohol treatment program —may be illegal discriminatio 1. Discrimination means treating someone less favorably than someone else because he or she has, once had, or is regarded as having a disability. • Acting against a person for reasons other than having a disability is not generally illegal discrimination, even if the disability is related to the cause of the adverse action. For instance, it is not likely to be ruled unlawful discrimination if someone in substance abuse treatment or in recovery is denied a job, services, or benefits because he – • 5 - does not meet essential eligibility requirements • - is unable to do the job - creates a direct threat to health or safety by his behavior, even if the behavior is caused by a substance use disor- der - violates rules or commits a crime, including a drug or alcohol- related one, when that misconduct is cause for excluding or disciplining anyone doing it. Since the basis for the negative action in these cases is not (or not solely) the person's disability, these actions do not violate Federal non - discrimination laws. EMPLOYMENT Q: Are people in treatment for or in recovery from substance use disorders protected from job discrimination? A: The answer in many cases is "yes." The Americans with Dis- abilities Act and the Rehabilitation Act prohibit most employers from refusing to hire, firing, or discriminating in the terms and g, g e s a d • conditions of employment against any qualified job applicant or employee on the basis of a disability. • The ADA applies to all State and local governmental units, and to private employers with 15 or more employees. • The Rehabilitation Act applies to Federal employers and other public and private employers who receive Federal grants, contracts, or aid. Rights In general, these employers — • May not deny a job to or fire a person because he or she is in treatment or in recovery from a substance use disorder, unless the person's disorder would prevent safe and compe- tent job performance. • Must provide "reasonable accommodations," when needed, to enable those with a disability to perform their job duties. Changing work hours to let an employee attend treatment • 6 is one kind of a reasonable accommodation. (But if an accommodation would cause the employer undue hard- • ship — significant difficulty or expense —it is not required.) • Must keep confidential any medical- related information they discover about a job applicant or employee, including information about a past or present substance use disorder. Limits The non - discrimination laws protect only applicants and employees qualified for the job who currently are not engaging in the illegal use of drugs. • "Qualified" means that a person meets the basic qualifica- tion requirements for the job, and is able to perform its essential functions— fundamental duties —with or without a reasonable accommodation. • Remember: people who pose a direct threat to health or safety, or have committed misconduct warranting job disci- pline, including termination, are not protected. Medical. Inquiries & Examinations • As a general rule, employers: • May not use information they learn about an individual's disability in a discriminatory manner. They may not deny or treat anyone less favorably in the terms and conditions of employment if he or she is qualified to perform the job. • Must maintain the confidentiality of all information they obtain about applicants' and employees' health conditions, including addiction and treatment for substance use disor- ders. Before making a job offer, employers may not ask: • Questions about whether a job applicant has or has had a disability, or about the nature or severity of an applicant's disability. Pre -offer medical examinations also are illegal. • Whether a job applicant is or has ever abused or been • 7 addicted to drugs or alcohol, or if the applicant is being treated by a substance abuse rehabilitation program, or has received such treatment in the past. Employers may ask job applicants: • Whether the applicant currently is using drugs illegally • Whether the applicant drinks . lcohol • Whether the applicant can perform the duties of the job. After making a job offer, employers may: • Make medical inquiries and require an individual to un- dergo a medical examination (including ones that reveal a past or current substance use disorder), as long as all those offered the position are given the same exam. • Condition employment on the satisfactory results of such medical inquiries or exams. • After employment begins, employers may make medical inqui- ries or require an employee to undergo a medical examination, but only when doing this is job- related and justified by business necessity. Such exams and inquiries may be permitted if the employer has a q Y p reasonable belief, based on objective evidence, that an employee has a health (including substance use - related) condition that impairs his or her ability to perform essential job functions, or that poses a direct threat to health or safety. Workplace Drug Testing • Employers are permitted to test both job applicants and employees for illegal use of drugs, and may refuse to g g Y hire —or may fire or discipline— anyone whose test reveals such illegal use. • Employers may not fire or refuse to hire any job applicant or employee solely because a drug test reveals the presence • 8 of a lawfully used medication (such as methadone). • Employers must keep confidential information they discover about an employee's use of lawfully prescribed medications. Medical Leave Q: Do I have the right to take medical leave from my job if I need it for substance abuse treatment? A: Yes, in many workplaces, you do. Rights The Family and Medical Leave Act (FMLA) gives many employees the right to take up to 12 weeks of unpaid leave in a 12 -month period when needed to receive treatment for a "serious health condition" which, under the FMLA, may include "sub- stance abuse." The leave must be for treatment; absence because of the employee's use of the substance does not qualify for leave. • The FMLA covers Federal, State and local Government employers, public and private elementary and secondary • schools, and private employers with 50 or more employees. • To be eligible for leave under FMLA, you must have been employed by a covered employer for at least 12 months, worked at least 1,250 hours during the 12 months imme- diately before the leave, and work at a worksite where there are at least 50 employees or within 75 miles of that site. • FMLA makes it illegal for employers to deny leave to or take action against an employee for requesting or taking leave. • In some circumstances, denying an employee leave for sub- stance use treatment may constitute a violation of the ADA or the Rehabilitation Act. Limits Neither the FMLA nor Federal non - discrimination laws make it illegal for an employer to fire or discipline an employee for a legitimate non - discriminatory reason, even when the em- p Y granted ee is ranted or entitled to leave under these se laws or under the employer's personnel policy. This means an employee who 9 • services (such as health or social services and education and • training programs) • benefit programs (such as welfare or child -care assistance) and other forms of financial assistance (such as student loans) • other Government activities, such as zoning or occupation- al licensure. Rights If you are "qualified" —that is, you meet the essential service, program, or activity—you eligibility requirements of the , p g ty ou y may not be denied the opportunity to participate in or receive benefits from these and other public services, benefit programs, or governmental activities because of your disability. Limits on Rights and Opportunities Due to Drug Convictions 1. Public Assistance and Food Stamps: Drug Felony Ban – The Federal welfare law (the Personal Responsibility and IP Work Opportunity Act of 1996) imposes a lifetime ban on Federal cash assistance and food stamps for anyone con- victed of a drug- related felony (including possession or sale) after August 22, 1996. However, States may "opt out" of or modify this Federal rule: - 12 States do not impose this ban. - 21 other States have modified the ban, and allow people who get treatment, show they are rehabilitated, or meet other requirements to become eligible again. 2. Education: The Higher Education Act of 1998, as amended in 2006, makes students who, while enrolled in school and receiving Federal financial assistance, are convicted of drug offenses (including possession or sale) ineligible for feder- ally funded student loans, grants, or work assistance. – Ineligibility lasts for varying lengths of time, depending on the type of drug offense and if it is a repeat offense. – This bars students from getting federally funded educa- tion loans or aid in college and in many other educa- 12 tional and training programs. • - States cannot "opt out" or otherwise modify this Federal rule. 3. Driver's Licenses — The Department of Transportation (DOT) Appropriation Amendment offers Federal financial incentives t. States that agree to revoke or suspend, for at least 6 months, the driver's license of anyone convicted of a drug offense (including not only drug- related driving of- fenses, but also those involving drug possession or sale). - Many States choose not to opt out of this law. PRIVATE EDUCATIONAL, HEALTH CARE, AND OTHER FACILITIES Q: Do private educational institutions, service providers, and other facilities also have to comply with Federal non- discrimina- tion laws protecting people with disabilities? A: A large number do. • • The Americans with Disabilities Act requires "public ac- commodations" as well as Government agencies to comply with its non - discrimination requirements. Public ac- commodations are private facilities that provide goods or services to the public. They include: - schools and universities - hospitals, clinics, and health care providers - social service agencies such as homeless shelters, day care centers, and senior centers. • Private service providers that receive Federal grants, con- tracts, or aid must comply with the same non- discrimina- tion requirements under the Rehabilitation Act and the Workforce Investment Act, when it applies. Rights In offering or providing their goods or services, public ac- commodations (and other private entities covered by the Reha- bilitation Act or WIA) must not discriminate against individuals • 13 on the basis of their past, current, or perceived disability. This means they must ensure that individuals with disabilities: • enjoy the equal opportunity to participate in or benefit from the facility's goods and services • receive goods or services in the most integrated setting pos- sible. Segregating or providing different services to people with disabilities generally is not allowed. HOW YOU CAN PROTECT YOUR RIGHTS Is there anything I can d o to protect my rights Y� g P Y hts under these g Federal non - discrimination laws? A.: Yes. If you believe you are being or have been discriminated against because of your past or current alcohol disorder or past drug use disorder, you can challenge the violation of your rights in two ways: - You may file a complaint with the Office of Civil Rights, or similar office, of the Federal agency(s) with power to • investigate and remedy violations of the disability dis- crimination laws. Key ones are listed below. You do not need a lawyer to do this. Filing with the Government can be faster and easier than a lawsuit and get you the same remedies. However, the deadline for filing these complaints can be as soon as 180 days after the discrimi- natory act — or even so ner, with Federal employers — so always check. The Federal agencies listed can tell you the deadlines and other requirements for filing discrimina- tion complaints. - In most (but not all) cases, you also may file a lawsuit in Federal or State court, in additi tn to or instead of filing an administrative complaint. Deadlines for lawsuits vary from 1 to 3 years following the discriminatory act. - You must file employment discrimination claims under the ADA with the U.S. Equal Opportunity Employment Commission (EEOC). You may not file a lawsuit first or instead of filing with the EEOC. • 14 If your complaint is upheld, the persons or organizations that discriminated against you may be required to correct their ac- tions and policies, compensate you, or give you other relief. Here is contact information for the key Federal agencies that ac- cept complaints alleging disability -based discrimination: Employment: U.S. Equal Employment Opportunity Commis- sion: (EEOC). Call (800) 669 -4000 (voice) or (800) 669 -6820 (TTY) or visit http: / /eeoc.gov /facts /howtofil.html. Medical leave rights (FMLA): U.S. Department of Labor, Wage and Hour Division. Call (866) 487 -9243 (voice) or (877) 889- 5627 (TTY) or visit http : / /www.doLgov /esa /whd /fmla /. Job training and related services provided through the One - Stop Career Center system (W1A): either the State or local Equal Opportunity Officer (contact information should be available through the program or service involved), or the U.S. Depart- ment of Labor Civil Rights Center (CRC). To reach CRC, call (202) 693 -6500 (voice) or the toll -free Federal Informa- 1, tion Relay Service at (800) 877 -8339 (TTY) or visit http: / /www.dol.gov /oasam /programs /crc /complaint.htm. Housing: U. S. Department of Housing and Urban Development (HUD), Office of Fair Housing and Equal Opportunity. Call (800) 669 -9777 (or local office for TTY service) or visit http: / /www.hud.gov /complaints /housediscrim.cfm. Public accommodations: U.S. Department of Justice (DOJ). Call (800) 514 -0301 (voice) or (800) 514 -0383 (TTY) or visit www. usdoj.gov /crt /ada /t3compfm.htm. Government services, programs, and activities: Contact the Fed- eral agency that gives financial assistance to, provides, or regulates the program or activity. You can look up how to contact the agency in your local phone book or public library, or look for the agency's Web site online. • 15 • • This brochure provides general guidance on the legal rights of individuals with alcohol and drug problems. It is not intended to serve as legal advice for any particular case involving or potentially involving discrimination. If you believe that you have been or are being subjected to illegal discrimination, you should immediately consult an attorney or seek assistance from the Federal agency responsible for addressing discrimination complaints or administering the program or benefits at issue. • The Public law Journal • www.calbar.ca.gov /publidaw • VoL 33, No.2, Spring 2010 First published in the California Real Property Journal, a quarterly publication of the Real Property Law Section of the State Bar of Calif n,iia. • Aicohoiism Drug Addiction and the to Fair Housin _ How The F a i r H . ou . sin.g Act Applies To Sober Li i Homes By Matthew M. Gorman, Anthony Marinaccio, and Christopher Cardinale' 1. INTRODUCTION While in Orange County, whole sections of nizations operate sober living facilities, rang - beachfront neighborhoods have been converted ing from the single landlord who rents his/ In 2007, staff working at a city in east Los to so-called "sober living homes." The operators her home to individuals with alcohol or drug Angeles County was notified that a small object to city and neighborhood complaints on addictions to the corporation that employs a single family home in a quaint residential the ground that their operations are protected full-time staff of treatment professionals and neighborhood was occupied by more than by the FHA. owns multiple facilities across numerous cities ten unemployed drug addicts, most of whom or states. A good example of the "sober living were on parole, with little or no supervision by These scenarios may sound strange, but they model" is Oxford House, a well-known network authorities or others. Investigation of the home are certainly true. They illustrate a challenging of sober living facilities that operate throughout revealed that its two bedrooms had been illegally issue in residential land use and Fair Housing the United States and internationally. Although subdivided and furnished with bunk beds. The Act jurisprudence: Where should individuals each residence is an independent organization, living room had been divided with drywall and undergo rehabilitation for alcohol and drug the umbrella organization, Oxford House, • make -shift plumbing had been installed for addiction? How does the Fair Housing Act serves as a network connecting other sober liv an extra toilet. A tent had been pitched in the affect local government's authority to regulate ing homes in the area. According to Oxford backyard to house additional occupants, and and restrict alcohol and drug recovery facilities? House, 1,200 self- sustaining homes operate on the garage had been furnished with carpet, a With the advent of "sober living homes" - its model, serving 9,500 people at any one time, toilet, a shower, and beds. In fact, all occupants homes designed to incorporate alcohol and drug totaling more than 24,000 annually.' Oxford were found to be parolees with alcohol or drug addiction recovery into normal residential life - House operates on the theory that those recov- addictions, most were unemployed, and many these issues have been pushed to the forefront in ering from drug and alcohol addictions will had lived there for only a few days or more due many communities and will likely face increasing n Y Y g remain sober if they live in a supportive enviro to the frequency in tumover. To make matters attention as the popularity of sober living treat- ment with those suffering similar addictions.' worse, the home was located next door to a fam- ment advances. ily with three children, across the street from Whether sober living facilities follow the another family with four children, and within This article summarizes the legal character - Oxford House model or some other approach, walking distance of an elementary school bus istics of sober living homes and how they are their locations vary from high end beach com- stop. regulated under their relation with the FHA. In munities that mirror resort living, to dilapidated particular, this article illustrates how the FHA single family homes located in high crime Prompted by neighbor complaints, city is being used by owners and residents of sober neighborhoods plagued by poverty. Reactions councilmember outrage, and public safety con- living homes to advance their establishment and to sober living facilities can be similarly varied. terns from police, the city took steps to vacate operation, and it explores what local jurisdic- Some view sober living facilities as service pro- the home. These efforts met resistance. The tions can do to regulate sober living homes in viders, providing much- needed support to indi- property owner claimed that the residents were light of FHA requirements. viduals recovering from addictions. For others, "disabled individuals" protected from dislocation sober living facilities are viewed as blight in the under the Federal Fair Housing Act ( "FHA" H. WHAT IS A SOBER LIVING community, often becoming most problematic or the "Act "),' and that they were entitled to HOME? when neighbors and nearby residents learn that continue residing at that house because it was large numbers of alcohol and drug addicts reside a "sober living home" which provided an envi- There are many variations among sober living together near them. ronment of support and sobriety necessary for facilities and operators; however, all emphasize recovery. the same facets of life under their roofs. The Nearly any single family home can become a location of a sober living or alcohol recovery "sober living home" by adopting that label and Miles away, a multi-million dollar mansion home in a drug free, single family neighborhood renting rooms to individuals with alcohol or is charging wealthy occupants thousands of plays a crucial role in an individual's recovery by drug addictions. It is not uncommon for land - dollars to reside in a serene environment, free providing a supportive environment that pro- lords seeking to maximize their rents to adopt of alcohol and drugs, to assist in recovery from motes self esteem, helps create an incentive not th sober living moniker even though no actual • addiction. When faced by complaints of neigh- to relapse, and avoids the temptations that the sober living programs are implemented at the boring properties, the operators of this facility presence of drug use can create. Z site. Abuses of the sober living model abound, also claimed that it was a "sober living home," with some single family homes housing upwards protected from regulation pursuant to the FHA A plethora of for -profit and non -profit orga- of twenty or thirty individuals under the guise of 13 7 N The Public Law Journal • www.calbar.ca.gov /publidaw • Vol. 33, No.2, Spring 2010 "sober living" when, in fact, these homes provide the Act defines "handicap" as: restrict the person from activities that are cen- no meaningful program for recovery and do not trally important to most people's lives, and it III adhere to "legitimate" sober living guidelines. "(1) a physical or mental impairment must be long term." which substantially limits one or This creates significant confusion for cit- more of such person's major life However, to qualify as a handicap under the ies, counties, and other agencies charged with activities, FHA, the person must not be currently abus- regulating residential land use and assisting ing alcohol and/or drugs. The FHA expressly disabled individuals. In perhaps the most well- (2) a record of having such an limits protection to not include "current, illegal known jurisdiction facing problems posed by impairment, or use of or addiction to a controlled substance."' sober living facilities, the City of Newport Beach Although the FHA does not define what it has experienced an extreme concentration of (3) being regarded as having such an means to be a current drug user, courts rely sober living facilities, which have transformed impairment, but such term does upon the ADA and the Rehabilitation Act to neighborhoods from a relaxed beach going not include current, illegal use determine what is "current drug use." At the atmosphere to a quasi - clinical community pro- of or addiction to a controlled time of the alleged discrimination the plaintiff viding services from a patchwork of residential substance." must prove he was not using illegal drugs — even buildings. In this context, neighborhood out- if the person later uses illegal drugs again at rage prompted regulation by the city, ultimately In determining whether substance abuse the time the complaint is filed or at the time of precipitating an FHA lawsuit by sober living would be considered a handicap, Congress' trial.' Thus, an individual with an alcohol or operators.' intent is important to discern. Such intent drug addiction may qualify for preferential hous- was first formed when Congress first formed ing rights pursuant to the FHA. Indeed, it is difficult for those agencies to its intent when it adopted the Rehabilitation discern between "legitimate" sober living facili- Act a few years prior to the FHA. Under the C. NEXUS BETWEEN THE ties, which employ good faith measures to assist Rehabilitation Act ADDICTION DISABILITY AND individuals in their alcohol or drug addiction HOUSING NEED "(IJndividiials who have a record of recovery, from "illegitimate" facilities which use the "sober living" title as a front for ques- drug use or addiction but who are not Of course, disability due to an alcohol or currently using illegal drugs would drug addiction does not immediately entitle an tionable rental practices. This confusion can g Y be complicated by the various state licensing continue to be protected if they fell individual to live wherever he or she wants. To provisions that regulate facilities providing care under the definition of handicap.... qualify as disabled under the FHA, there must for the disabled or for those recovering from Just like any other person with a dis b a nexus that links the treatment of the dis- ability, such as cancer or tuberculosis, abili with the need for housi In the context addiction. In California, the Department of tY housing. Social Services' and the Department of Alcohol former drugdependent persons do of sober living homes this nexus arguably exists not pose a threat to a dwelling or its when living at a particular location is, in and of and Drug Programs, are responsible for )isms g P ing and supervising specified facilities which inhabitants simply on the basis of itself, a means of treating the alcohol or drug may operate as sober living programs, status. Depriving such individuals of disabili • y p g p s similar to that ms, of which tY- s si housing, or evicting them, would con may provide housing or service provided by unlicensed sober living facilities.' stitute irrational discrimination that Typically, this nexus is shown by asserting The California Attorney General has noted the may seriously jeopardize their contin- that a supportive, sober residential environment ued recovery?" difference between licensed facilities and non -' is necessary for sobriety and addiction recov licensed sober living homes. Licensed facilities ery. Individuals with alcohol or drug addiction are different "from facilities that simply provide Ultimately, Congress determined that many allege that such environments foster sobriety, a cooperative living arrangement for persons terms of the Rehabilitation Act should apply to and encourage trust and camaraderie between recovering from alcohol and other drug pro' the FHA, and courts have later found that the residents that is necessary for recovery. Plaintiffs )erns. The latter `sober living environments' are term "physical or mental impairment" under the argue that they would suffer substantial limita- not subject to licensing from the Department are FHA includes diseases such as drug addiction tions and risk "falling off the wagon" if not for Such licensed facilities enjoy substantial rotes- (when it i not caused by current illegal use of a living in a sober living environment. Courts lions from local regulation and therefore make it controlled substance) and alcoholism. Thus, have agreed with this theory.' difficult for local agencies to police sober living although many would not at first glance, realize homes and to prohibit "illegitimate" sites from that a handicapped person includes one suffer- Sober living advocates assert this nexus when ing from alcoholism or drug addiction in fact claiming FHA protection over sober living operating. the FHA extends its protections to such persons. facilities. For example, when recovering alcohol 111. HOW DOES THE FHA APPLY In 2000, the Ninth Circuit held: "It is well and drug addicts live together, "house rules" TO SOBER LIVING HOMES? established that individuals recovering from drug prohibiting the consumption of alcohol and or alcohol addiction are handicapped under the drugs, requiring attendance at "house meetings" A. HISTORIC ROOTS DEFINING Act [FHA]?" to encourage sobriety, mutual support are estab- DRUG AND ALCOHOL lished. House rules are intended to maximize ADDICTION AS A DISABILITY B. ESTABLISHING ALCOHOL efforts to cope with, and overcome addiction. OR DRUG ADDICTION AS A Merely living in a sober house may be viewed as The crux of the FHA's application to sober DISABILITY UNDER THE FHA a necessary means of accommodating one's dis- living facilities is based on the definition of a To demonstrate a disability under the FHA, ability such that the FHA essentially entitles the "disability." The FEHA does not address alto- a plaintiff must show: (1) a physical or men- right to live there. holism or drug abuse as disabilities that would be protected under FEHA; however, it includes impairment that substantially limits one Applying the FHA in this way opens the door or major life activities, (2) a record of having number of living arrangements intended the definition of a "disability" found in the to any living arran Americans with Disabilities Act ( "ADA ") if it such an impairment, and (3) that the plaintiffs to assist those recovering from alcohol or drug are regarded as having such an impairment addiction. Essentially, an here a sober environ- provides results in "broader protection of the Y� anywhere However, a plaintiff must show not only that ment is provided, or where support for addiction he alcoholic in the but also that • civil rights of individuals with a mental disability P PP° e was an acooc n e pastll, recovery is encouraged, might be viewed as loca- or physical disability ... or would include any fY t� g medical condition not included?" As amended his past alcoholism substantially limited one or tion where an alcohol or drug addict may assert in 1988, the FHA prohibits discrimination in more major life actives." itiTo be substantially FHA protections. housing on the basis of handicap. As amended, limited, the impairment must prevent or severely 14 The Public Law Journal • www.calhar.ca.gov /publidaw • VoL 33, No.2, Spring 2010 For example, in 2007, the City of Newport period of time" is longer than one would nor- stance abusers more so than those living under Beach attempted to address the "clustering" mally stay in a motel and can be for as short as different group arrangements.' Other types of of multiple unlicensed sober living homes by two weeks.' land use or building regulations, such as build- , imposing restrictions on the establishment and ing codes, may also be of little value to plaintiffs operation of "group residential uses," aimed Locations viewed as "temporary dwellings," asserting disparate impact claims because such at curbing a perceived saturation of sober liv such as boarding homes, halfway houses, flop regulatory measures are applied uniformly. ing facilities in neighborhoods." Such efforts houses, and similar locations, have been found prompted a lawsuit by an operator, "Sober to be "dwellings" under the FHA." Notably, However, disparate impact analysis is easier to Living by the Sea," alleging FHA violations and however, a homeless shelter is not considered prove when there is evidence of discriminatory other claims.' In addition, Sober Living by the a "dwelling" protected under the FHA because intent. For example, in Oxford House v. Town of Sea filed a complaint with the U.S. Department it only provides emergency, overnight shelter.' Babylon, the town attempted to evict residents of of Housing and Urban Development alleging Thus, application of the FHA to such "tempo- a sober living home from a single family home violations of the Federal housing laws. According rary" sober living establishments may be of lim- because the town code defined a single family to the City's website, the City has since settled ited use in some contexts. home as a building established for the residency the lawsuit with Sober Living by the Sea and of not more than one family.' In Town of other sober living home operators.' However, Similarly, in reviewing the differences between Babylon, an Oxford House was established in a certain sober living facilities remain in operation a "home" and a "hotel," the more occupants single family neighborhood. Soon thereafter despite continued opposition from residents, treat the structure like their home by performing nearby residents complained that they did not and recent reports have indicated that lawsuits tasks such as cooking their own meals, cleaning want recovering alcoholics and drug addicts liv by other sober living operators continue.' Such their own rooms and the premises, doing their ing in their neighborhood.'' Because the record events illustrate that FHA may significantly com- own laundry, and spending free time in the corn- of town council meetings contained discrimina- plicate local agencies' efforts to regulate sober mon areas the more likely courts will determine tory statements against alcoholics, the court living operations, and highlight the means by that a structure is a dwelling for purposes of the found the town had evicted a sober living home which sober living operators can challenge local FHA.'< from a single family neighborhood because it regulation. disliked alcoholics." Under these definitions, a sober living home D. WHAT LOCATIONS MAY may qualify as a home or a hotel depending on Plaintiffs requested that the town modify QUALIFY AS SOBER LIVING how the living situation is arranged. Often, a the definition of a family. Although the court HOMES PROTEC1'Ell BY THE sober living home does not provide anything agreed that the town's interest in its zoning FHA? more than a bed, while other homes provide ordinance was substantial, it found that evicting actual care, such as prepared meals and leaning the residents from a sober living home did not Despite the broad application of FHA require- services. Although many sober living homes further that interest because evidence showed ments to locations claiming to offer a sober liv- provide some form of counseling and guid- that the house was well maintained, the town ing experience, there are some limits to applying ante, sparse supervision is not uncommon and had not received many complaints from neigh- . the Act. residents who can care for themselves are often bors, and the house did not alter the residential allowed a high degree of independence. character of the neighborhood." Relying on First, the FHA itself is limited to "dwellings." the FHA, the court balanced plaintiff's claim The Fair Housing Act makes it unlawful "(t] IV. HOW DOES A SOBER LIVING of discriminatory impact against the City's o refuse to sell or rent ... or otherwise make HOME ASSERT THE FHA? justification. When balancing the interests, unavailable or deny, a dwelling to any person the discriminatory impact was far greater than because of race, color, religion, sex, familial FHA violations may be established either by t h e town's interests which may not have been »E7 (1) showing di sparate i mpac t b upon a status, or national origin. A dwelling includes supported by substantial evidence. Further, the "any building, structure, or portion thereof practice or policy of a particular group; or (2) by court found that two factors weighed heavily in which is occupied as, or designed or intended "showing that the defendant failed to make rea- plaintiff's favor. First, evidence of discriminatory s onable accommodations in rules, policies, or for occupancy as, a residence by one or more intent by the town; and second, evidence that families.. "' Although the FHA does not define practices so as to afford people with disabilities plaintiff wanted the town to eliminate an obsta- what a residence is, courts have interpreted an equal opportunity to live in a dwelling."' cle to housing rather than suing the city to com- the definition of a residence to be the ordinary pel the city to building housing.' Consequently, meaning of the term.'' A. DISPARATE IMPACT plaintiff had proven a disparate impact under ' The definition of a dwelling is important To prove disparate impact under the FHA, a a sober living home from the FHA because the town s being policy of preventin established in a because many sober living homes offer short plaintiff must demonstrate that the challenged g being y g practice actually or predictably results in dis single family neighborhood disparately impacted p ll ,� p y term residencies and experience high turnover individuals with alcohol and drug addiction." rates. Because tenancies at sober living homes critnination. If a plaintiff is able to establish g vary dramatically the way residents treat their discrimination, the defendant must then prove B. REASONABLE facilities and how they view these facilities are his or her action further a legitimate government ACCOMMODATION important indicators for whether the structure interest and that there is no alternative available will be considered a dwelling under the FHA to serve the interest would have a less dscrimina- Under the FHA, it is a discriminatory practice tory effect.' Further, when plaintiffs are merely to refuse to make "a reasonable accommodation requesting to remove an obstacle to housing, in rules, policies, practices, or services when Although a dwelling is covered by the FHA, rather than creating new housing units, a local such accommodation may be necessary to afford temporary shelters are not. Dwellings must be government must establish a substantial a handicapped person equal opportunity to intended for use as a residence. Two factors justification for its conduct use and enjoy a dwelling.n Under the FHA, determine whether a facility is a dwelling under a handicap is defined as a physical or mental In the context of sober living homes, it the FHA first is whether the facility is intended impairment which substantially limits one or is often difficult to prove a dsparate impact n or designed for occupants who intend to remain because similar group living arrangements such more major life activities of a person. As stated at the facility for a significant period and sec- by the Central District of California in Behavioral fraternity or sorority houses and other group and is whether the occupants of the facility Health Services v. City of Gardena: • would view it as a place to return to during that homes may also be excluded from a particular period.' Courts typically find that a "significant zone, so a sober living home would have to prove that the exclusion disparately impacts sub - 15 The Public Law Journal • www.calbar.ca.gov /publiclaw • Vol. 33, No.2, Spring 2010 "[A city] must accommodate plaintiffs C. STANDING AND EXHAUSTION Oxford Houses must give the City a chance when the accommodation is necessary OF REMEDIES to accommodate them through the City's [i.e., when plaintiffs' disability pre- established procedures for adjusting the zoning • vents them from use of the property One who seeks a reasonable accommodation code."" However, a plaintiff is not first required unless exceptions are granted] and from a governmental regulation, ordinance or to appeal a decision through the local body and does not impose undue financial or practice must do so through the agency's estab- may file suit once a reasonable accommodation administrative burdens, or require a lished procedure to obtain the relief that he /she is first denied. The first approval may require fundamental alteration of the zoning seeks. A plaintiff must first provide the govern- a public hearing which is not considered unrea- program. » mental entity an opportunity to accommodate sonable if applied evenly to the handicapped the plaintiff through the entity's established and non - handicapped" Therefore, a public An accommodation is reasonable under the procedures used to adjust the neutral policy in hearing may be required to receive a reasonable FHA if it does not cause undue hardship, fiscal question!' accommodation and that alone is not considered or administrative burdens on the municipality, unreasonable. or does not undermine the basic purpose that The first hurdle plaintiffs must establish when the zoning ordinance seeks to achieve." Courts challenging an ordinance or decision by a gov- Accordingly, although a disabled individual have applied the reasonable accommodations emment body is whether the plaintiff has stand must first request a reasonable accommodation requirements to zoning ordinances and other ing. Issues concerning standing under the FHA and follow the local jurisdiction's procedures to land use regulations and practices thereby requir- are similar to those under other laws for the dis- receive a reasonable accommodation, it may not ing cities to make reasonable accommodations abled, such as the ADA. In general, those rules have to follow the appeal procedure once the for those disabled under the FHA's definition!' permit non-disabled persons to assert claims first denial occurs. It is important to note this Under similar laws, courts have held that even under the law on behalf of individuals who are because a lawsuit is subject to dismissal without one incident of a denial of reasonable accommo- disabled.' Under the FHA, one has standing a determination of the merits if there is no dation is sufficient to trigger a violations' Thus, if one would have standing under Article III standing or the issue is not ripe for review. a three-part test is applied in determining wheth- of the U.S. Constitution. Under the FEHA, er a reasonable accommodation is necessary: (1) any "aggrieved person" may bring suit to seek V. PITFALLS AND POSSIBILITIES the accommodation must be reasonable and (2) relief for a discriminatory housing practice. An IN REGULATING SOBER necessary, and must, (3) allow a substance abuser "aggrieved person" is one who has been injured LIVING SITES equal opportunity to use and enjoy a particular by a discriminatory housing practice. dwellings' To determine if an accommoda- As the foregoing makes clear, FHA claims tion is reasonable the Court must determine An organization is allowed to bring a suit on involving sober living facilities typically involve whether the accommodation would undermine its own under the FHA when its purpose is frus- two competing interests: (1) the interests of a legitimate governmental purpose and effect of trated and when it expends resources because individuals recovering from addition, often rep - an existing zoning ordinance, and must consider of a discriminatory action. For example, in resented by landowners or organizations which the benefit to the handicapped person, and the Fair Housing of Marin v. Combs, Fair Housing of provide addiction recovery services; versus (2) costs associated with such an accommodation.' • In particular, an accommodation is unreason- Marin ( "FHM ") filed suit alleging discrimination the interests of residents who seek to preserve against African- Americans which caused the the "family - friendly" character of their neigh - able if it would cause an undue financial and group to suffer injury to its ability to provide out- borhoods, often represented by city attorneys, administrative burden on the local jurisdiction.56 reach and education to end unlawful discrimi- county counsel, or other public agency attorneys In sum, a reasonable accommodation changes a nation practices and alleging it had to spend (or attorneys hired by citizen groups opposed to rule of general applicability to make it less bur- additional resources in response to defendant's sober living facilities in their neighborhoods). densome on a handicapped person. discriminatory actions. The Ninth Circuit held These disputes arise after a claimed sober living that FHM established standing to sue under the home is established in a single family residential Consequently, courts have held that munici- FHA because the defendant's illegal housing dis- neighborhood bringing with it unfamiliar and palities must change, waive or make exceptions crimination injured FHM's outreach programs, seemingly unrelated faces living together, congre- in their zoning rules to afford people with dis- requiring it to implement alternate programs in gating on porches and front yards, or wandering abilities the same access to housing as those who the community to compensate for the discrimi- nearby streets. Disturbances arise, eventually are without disabilities. However, a munici- 57 nation. leading to phone calls to the police, complaints pality is not required to make fundamental or to the local officials, and ultimately for demands substantial modifications from its municipal or In addition, an organization is allowed to by the city or county to intervene and shut down zoning code to accommodate a disabled per- bring suit on behalf of its members when: (1) its the sober living home. son. The crux of the issue often becomes what members would otherwise have standing to sue is considered a reasonable versus a s ubstantial right their (2) the interest it seeks to vin- It is at this point where FHA requirements eir own ri ht � ( ) modification. dicate is germane to the organization's interests; may first become a concern. Faced with such and (3) neither the claim asserted nor the relief claims, local jurisdictions may determine that A local government or private entity must requested requires the individual participation of a sober living site does not operate as a "single make an accommodation if it is reasonable and its members." family home," but rather constitutes a "board - necessary to afford handicapped persons equal and -care facility," "rooming house," or similar opportunity to use and enjoy housings' A court Perhaps more important than who may bring type of group living facility which may not be will look at many factors to determine whether a lawsuit is whether the lawsuit is ripe. "To permitted in a single family neighborhood, or or not an accommodation would be reasonable, prevail on a reasonable accommodation claim, which my be subject to land use or business including whether the accommodation would plaintiffs must first provide the governmental permit requirements in order to lawfully oper- entity an opportunity to accommodate them ate. Typically, code enforcement citations are undermine the legitimate purposes of zoning reg- ulations and the benefits that the accommoda- through the entity's established procedures issued or other legal steps are taken to enforce used to adjust the neutral policy in question."' such provisions against the facility, in response tion would provide to the handicapped persons Further, a reasonable accommodation cannot In Oxford House v. City of St. Louis, the Eighth to which the facility operator or owner raises require an undue financial and administrative Circuit found that plaintiff did not have a claim the FHA as a basis for challenge, asserting that • burden on a local government' However, the of failure to make a reasonable accommodation enforcement is unlawful because doing so would city may not impose unreasonable restrictions if when plaintiff had not applied for a variance infringe upon the fair housing rights of resi- it grants a reasonable accommodation!' even after the city had requested that plaintiff dents, each of which are "disabled" due to their (a sober living home with eight residents) first alcohol or drug addiction. apply for a variance. The court stated, "The 16 I The Public Law Journal • www.enlbar.ca.gov/pubhdaw • Vol. 33, No.2, Spring 2010 A. THE LEGAL ENVIRONMENT grant the site an exemption from strict applica- for persons 55 years of age or older." While IN WHICH FHA CLAIMS ARE tion of the city's authorities. Plaintiffs filing suit the individuals challenging the ordinance were • MADE under the FHA often bring actions alleging both not handicapped in Gibson, this exemption does disparate impact and reasonable accommoda- apply to sober living homes, and is valid if the A local jurisdiction's authority to regulate Lion theories.!' Of course, the analyses for each three requirements are met. sober living facilities is derived from its general theory are different. Disparate impact analysis police powers. Article XI, Section 7, of the focuses on neutral policies that disparately Exemptions under the FHA do allow cities California Constitution grants local govern- impact handicapped persons,' whereas reason- some leeway in enforcing zoning and plan- ments the authority to "make and enforce able accommodation analysis focuses on whether ning schemes. However, because exemptions within its limits all local, police, sanitary, and a local jurisdiction could make an exemption to are exceptions to the general rule prohibiting other ordinances and regulations not in conflict a policy to allow a handicapped person to use discrimination, the exceptions are construed with general laws. » Additionally, the Planning and enjoy a dwellings' narrowly. and Zoning Law authorizes cities and coun- ties to regulate the use of buildings and land Despite the restrictions imposed on a munici- B. PRACTICE POINTERS FOR for residential purposes, and numerous other pality's ability to enforce otherwise generally AGENCY COUNSEL AND SOBER provisions vest in local agencies broad authority applicable zoning restrictions, there are some LIVING ADVOCATES to regulate residential uses and housing within exemptions created by the FHA. Application their jurisdictions." When disputes involving of these exemptions, however, is often compli- Concerns are often greatest when the sober sober living facilities arise, cities and counties cated. For example, in City of Edmonds v. Oxford living operator is perceived as "illegitimate." For often seek to regulate the facility's operations or House, the Supreme Court dealt with an FHA example, some operators offer housing to indi- prohibit its existence entirely. *FHA claims are exemption allowing "any reasonable local, State, viduals with alcohol or drug addiction in "flop - therefore pitted against these authorities. As or Federal restrictions regarding the maximum houses" or boarding homes designed to house as such, issues triggered by sober living sites often number of occupants permitted to occupy a many individuals as possible where residents do concern local government's legitimate state law dwelling." Specifically, the Court analyzed a not follow any sober living regimen and might powers, and whether they are preempted by the provision of the City's zoning code governing not be in treatment for addiction. Indeed, the interests sought to be advanced by the FHA. areas zoned for "single family residences.n The residents may themselves be viewed as vulner- section at issue defined "family as "persons [with- able, emotionally or mentally disturbed individu- Significantly, because sober living facilities out regard to number] related p- als who are being taken advantage of because g ga by genetics, ado are a relatively new form of residential use, and tion, or marriage, or a group of five or fewer they have few other places to find housing; or because they involve the interplay of unique and [unrelated] persons. " The Court held that the they may be viewed as social deviants who feign technical legal provisions, most local jurisdic- exemption did not apply to provisions designed disability in order to "work the system." tions lack a standard land use definition for such to "foster the family character of a neighbor - a The problems such facilities pose se to facilities in their zoning and regulatory codes. hood," and instead applied only to occupancy neighborhood can such enormous because a their Thus, when problems with sober living facilities limits seeking to prevent overcrowding in living arise, municipalities must categorize the facilities 8 residents often do suffer from one or more • p eg quarters!' As such, the City's single family resi- emotional or mental disabilities, are often unem- within existing land use definitions in order to dente zoning requirement was not exempt from regulate them. Many local codes define "board- the FHA, and the City was required to permit ployed, or loiter in and around the premises, ing houses," "rooming houses," or similar types operation of the facility. congregate in yards, or create a fearful presence of "group living facilities" as unique residential in the neighborhood which disrupts the "family - use which are regulated according to established The maximum occupancy exemption was also friendly" character of a traditional single family zoning provisions, often requiring the owner to at issue in Turning Point, Inc. v. City of Caldwell.8e neighborhood. The outrage voiced by residents obtain a Conditional Use Permit or other discre- After receiving complaints from its citizens and neighbors in such circumstances can be tionary approval for the use to occur. regarding a dwelling that was housing homeless extreme, and the operator may raise the FHA individuals suffering from disabilities, the City not as a legitimate basis for defense, but as a Therefore, a municipality faced with a prob- imposed a 15 person occupancy limit on the tactic to remain operating without governmental lematic sober living facility may, for example, dwelling. The City imposed the limitation "to challenge. assert that the facility is an un- permitted board- preserve the integrity of the neighborhood. ' Because of the deference, courts have shown ing house, and may cite the owner or pursue However, the court invalidated the limitation legal action to shut the facility down based on after finding it "unreasonable.» Instead, the to the FHA operators of "illegitimate" facilities such authority. Alternatively, where the sober court ordered the occupancy set at 25, a number have used the FHA and their residents' disabili living facility is located in single family zone, supported by the City Building Inspector's analy- ties as a tool to avoid local government oversight a municipality may assert that the sober living sis of the dwelling.' An operator facing city enforcement may, for facility is an unlawful multi-family use which is example, assert the FHA's reasonable accommo- prohibited in that location. Similarly, it may Another FHA exemption was analyzed in dation requirements as a shield to avoid liability claim that that the facility operates as a residen- Gibson v. County of Riverside, which dealt with and to coerce the city to allow the facility to tial "business," akin to a residential hotel or a City ordinance imposing age restrictions on remain operating. This stands in stark contrast hostel rather than a residence, and therefore is persons occupying dwelling units in the zoned to "legitimate" sober living facilities, some of prohibited in residential zones. Municipalities area. Pursuant to the FHA, developments qual- which may be licensed by the state or affiliated may also discover building code, housing code, ifying as housing for older persons ( "HOP ") can with hospitals or respected clinics. Such "legiti- and other technical problems with facilities that discriminate based on family status" Analyzing mate" facilities may face similar public outcry, have been illegally remodeled to accommodate the ordinance at issue, the court cited three and may likewise assert the protections of the occupancies beyond that for which the structure requirements, recognized by congress, that must FHA to avoid local government regulation. was originally designed. be met by housing developments seeking to qual- ify as a HOP: 1) the existence of significant facili- For p ractitioners who represent cities, coun- In response to such claims, the sober living ties and services specifically designed to meet the ties, or interest groups concerned about the operator may rely on the FHA to assert that physical or social needs of older persons; 2) the potential impact that a sober living facility will 0 the city's authorities are unlawful because they occupation of at least 80 percent of the units by have on a neighborhood, facing such claims either: (a) create a disparate impact, so as to at least one person 55 years of age or older and; can be challenging, as passionate residents and discriminate against disabled individuals (i.e., 3) the publication of, and adherence to, policies public officials demand prompt action ,while those with an alcohol or drug addiction); or (b) and procedures which demonstrate an intent concern for potential liability for violating the require reasonable accommodation, so as to by the owner or manager to provide housing FHA requires counsel to proceed very cautiously. r 17 The Public Law Journal • www.calbar.ca.gov /publiclaw • VoL 33, No.2, Spring 2010 Often, applying the FI -IA's requirements strictly, disability." Thus, in the context of sober living, senting sober living operators, residents in sober methodically, and uniformly will "ferret-out" it must be determined why living at a particular living programs, or advocates for sober living the legitimate sober living sites from those that site serves the residents' alcohol or drug addic- facilities would be well served to answer the fol- • merely use the FHA as a mask for otherwise tion. "Legitimate" sober living sites should be lowing: unprotected operations. Counsel should con- able to demonstrate this connection through sider answering the following questions: group living arrangements that support sobriety, 1. Has verification of disabilities encourage recovery through mutual support of been provided? For FHA protections to apply, 1. Are the residents truly "dis- housemates, and provide services that help resi- true disabilities must be established. Sober living a led ?" Only those with a disability are pro- dents cope with their addictions. "Illegitimate" advocates should be prepared to provide proof tected under the FHA. Counsel should verify facilities may be unable to show such factors, or that residents at a sober living site have been the claimed disability prior to considering FHA may have such routine turnover in occupancy diagnosed with an alcohol or drug addiction, claims. For example, merely claiming that a that the connection is too tenuous to be valid. are undergoing treatment for such addiction, or house is used for "sober living" is insufficient to to provide such other evidence to substantiate establish protections under the FHA. Residents 5. Even if the FHA applies. must residents' disabled status. When representing must actually be "disabled" meaning they must reasonable accommodation be granted? As an organization asserting FHA protection on actually be recovering from alcohol or drug noted previously, while disabled individuals are others' behalf, counsel may consider soliciting addiction. While an operator may have standing entitled to reasonable accommodation from residents' consent to provide records of medical to assert FHA protections on their behalf, this government restrictions which impact their use evaluation or treatment to substantiate disability does not waive the obligation to show that resi- or enjoyment of housing, such does not auto- status. However, counsel should be aware of dents are in fact disabled. Sites which claim to matically exempt all contrary provisions. Rather, privacy concerns and the laws governing privacy be "sober living homes," but are fronts for flop accommodation from government restrictions of health information, including the Federal houses, may be unable to establish FHA protec- may be denied if it imposes undue financial or Health Insurance Portability and Accountability tion. Residents' disabilities should be verified. administrative burdens on the agency or requires Act (HIPAA). Providing such evidence may go a fundamental alteration of an agency's zoning far to "legitimize" the facility and differentiate it 2. Is the site a "dwelling ?" The provisions. Therefore, rather than "rubber from "illegitimate" sites disfavored by cities and FHA applies to "dwellings" only, and while it stamp" all requests for reasonable accommoda- counties. may be difficult to differentiate between a site tion, a city or county may undertake a formal which provides in-and -out transitional housing review of the request and weigh the financial, 2. Has a nexus between the dis- from a true "dwelling," courts have found that administrative, and zoning impacts that approv- ability and the accommodation been articulated? merely providing a place for someone to sleep ing the request would have on the jurisdiction Courts have recognized that mutually- supportive for the night is insufficient. For example, motels and surrounding community. group living arrangements may be an important are not dwellings, even though some other short accommodation for individuals with alcohol term rental situations such as boarding houses, 6. Can other agency procedures or drug addictions.' °2 In order to demonstrate halfway homes, and flop houses are considered or entitlements resolve the problem? As noted the importance of a sober living environment dwellings. Investigating the actual living condi- previously, a disabled individual may not pursue in recovery, sober living advocates should be • lions and terms of occupancy may help deter- reasonable accommodation unless he/she has prepared to produce evidence demonstrating mine whether the site is a "dwelling" under the first sought "traditional" approvals to alleviate the connection sober living arrangements have FHA, or a transitional facility outside the FHA's barriers to equal use and enjoyment of a dwell - with treating residents' disabilities. Based on protections.` ing. Thus, where an agency requires an operator well- established precedent applying the FHA, to obtain a Conditional Use Permit prior to if this showing is established, restrictions on 3. Does mere "occupancy" at a site establishing a sober living facility, the operator operation may be difficult for a city or county to make it a "residence ?" While case law has not must apply for, and be denied, the CUP before justify, and the legitimacy of the facility may be addressed this point, a colorable argument could he /she may request reasonable accommodation enhanced in the eyes of public officials charged be made that the FHA applies only to "resident- from the CUP requirement. Counsel for the with reviewing the site. es," and not to occupancies which are temporary agency may, in such circumstance, advise that or transitional in nature. If, for example, a sober the CUP be crafted so as to address the accom- 3. Is there evidence of disparate living site has a weekly turnover of occupants, modations that the operator otherwise seeks, impact in application or enforcement? There it may be a stretch to argue that the FHA was thus avoiding any FHA issues from arising. is legal authority to support FHA claims where intended to apply to such sites because they do Alternatively, counsel may advise the agency to a city or county enforces its police or zoning not function as true housing which the FHA was consider reasonable accommodation requests powers in a manner that bans or unfairly dis- adopted to protect "Legitimate" sober living in conjunction with the CUP application, such criminates against sober living facilities. Thus, facilities typically provide long-term residen- that requested accommodations can become sober living advocates should consider whether cies in order to provide a sufficient period for conditions within the CUP itself. Because these local zoning and regulatory codes establish recovery. Focusing on the length of occupancy steps require the facility to submit information unacceptable barriers to the operation of sober may be helpful in determining the legitimacy of for agency evaluation, and culminating in a living facilities, and whether the jurisdiction the facility. Additionally, there is authority to public hearing, employing such procedures may has a history of excluding sober living facilities support the proposition that such impermanent help identify "legitimate" sober living opera- from operating. If such disparate treatment is occupancies may be excluded from single family tors. Additionally, such procedures will create a evident, sober living advocates may be able to residential zones because they do not adhere record that will be useful in future proceedings persuade the local agency that further exclusions to the "residential" character of those areas." involving the facility. will violate the FHA. Additionally, to the extent Although this issue has not been clearly delin- that a sober living site causes impacts which are eated by the courts, excluding sober living sites How an agency responds to a sober living no different than other normal residences in the on this basis may be proper both under the FHA facility often depends, in large part, on the poli- area, prohibiting the site from operating may and principles of zoning. tics of the community. Certain municipalities be problematic. "Legitimate" sober living sites are known for their "progressive" stance toward should fall within this category and enjoy a rela- 4. Has the nexus between the accommodating individuals recovering from tively strong position in negotiating with cities disability and the need for housing been drug or alcohol addiction. Other municipali- and counties over their operations. • established? The FHA applies where housing ties may disfavor such facilities, and may seek to is needed in order to accommodate disabil- exclude all but the most exclusive sober living 4. Does zoning improperly define ity. Even when reasonable accommodation is facilities from their jurisdictions. When facing "family" when restrictine residency? In the sought, it must be "necessary" to address the those in the Latter category, practitioners repte- context of land use regulation, case law prohibits 18 The Public Law Journal • www.calbar.ca.gov /publidaw • Vol. 33, No.2, Spring 2010 government agencies from limiting the defini- to strictly apply the FHA in order to limit the 7. Health & Safety Code § 11834.01, et seq. tion of a "family" to those related by blood, mar - establishment of sober living facilities, courts 8. See, e.g., Health & Safety Code § ID riage or adoption. Rather, courts have held have not addressed whether doing so violates 11834.01(a) (alcohol or drug abuse recovery that the concept of "family" must be broadly those agencies' housing requirements, includ or t facilities licensed by the construed to include numerous types of "non- ing obligations to maintain adequate affordable Department treatment reat of Alcohol and Drug Programs traditional" living arrangements, including group housing and to meet regional housing needs living among individuals who are riot related.' allocations.' are defined as: "any premises, place, or While not necessarily an FHA concern, such building that provides 24 hour residential authorities empower sober living operators by Perhaps more importantly, however, no cases non - medical services to adults who are enabling them to assert that residents of sober have addressed whether the FHA applies to recovering from problems related to living homes are just as much a "family" as are "specialized" residential sites, such as locations alcohol, drug, or alcohol and drug recovery a husband, wife, and children. Jurisdictions which exclusively house parolees or probation- treatment or detoxification services. "). which exclude such living arrangements from ers, locations which house sex offenders, or loca- 9. Cal. Op. Atty. Gen. 07.601. the definition of a "family," or which prohibit tions commonly known as "reentry facilities," such arrangements in single family zones where which serve as transitional housing for those 10. Cal. Govt. § 12926. traditional families are otherwise welcome, may recently released from prison who are seeking 11. 42 U.S.C. § 3602(h). be subject to legal challenge. Sober living advo- to transition into "normal" life. Such facilities cates who can demonstrate that residents, even have been increasing over the past several years, 12. Oxford House v. Township of Cherry Hill though unrelated, act as a cooperative "family and may increase dramatically in the near future, (D.N.J. 1992) 799 F.Supp. 450, 459 unit," may be significantly advantaged when fac- given the Governor's plans to reduce prison (Congress contemplated alcoholism and ing such challenges by local agencies. overcrowding and federal court- ordered reduc- drug addiction as being among the kinds tions in prison populations. of "impairments" covered under this 5. Is due considerst own eiven to definition. "). requests for reasonable accommodation? A Thus, while precedent construing the FHA 13. Id. local agency is required to grant disabled indi- and its application to sober living facilities is viduals reasonable accommodation from agency helpful to public agency counsel and sober liv- 14. See, Oxford House v. Township of Cherry Hill, restrictions when necessary for equal use or ing advocates, the future promises to pose even 799 F.Supp. 450, 459 (D.N.J. 1992). enjoyment of a dwelling. c6 Where local zoning more questions about the FHA's requirements, 15. 24 CFR § 100.201(aX2). or regulatory restrictions prohibit group living and the scope of its protections. arrangements, sober living advocates should 16. Corporation of the Episcopal Church in Utah request reasonable accommodation from such iiii • Matthew M. Gorman is v. West Valley City (2000) 119 F.Supp.2d restrictions. Because reasonable accommodation a partner of Alvarez- Glasman 1215, 1219. must be granted unless it causes undue financial & Colvin practicing in the 17. Regional Economic Community Action Program or administrative burdens to the agency or fun- fields of municipal law, land v. City of Middletown (2d Dist. 2001) 294 411 damentally alters an agency's zoning provisions, use, real estate law. F.3d 35, 46. sober living advocates start with an advantage 18. Id when presenting reasonable accommodation Anthony Marinaccio is requests to cities and counties. However, 0 an Associate Attorney at 19. Id. at 47. prudent advocates should be prepared to sub- Alvarez- Glasman & Colvin 20, 42 U.S.C. § 3602(h). stantiate the requests by demonstrating that the specializing in real estate facility will not be burdensome to the agency. and landlord- tenant law. 21. Fowler v. Borough of Westville (N.J. 2000) 97 For example, submitting evidence as to the facil- F.Supp.2d 602, 609. ity's internal policies and procedures which are Christopher Cardinale is intended to minimize impacts and smoothly inte- a J.D. candidate currently 22. Id grate the facility into the surrounding neighbor - enrolled at Pepperdine Law 23. City of Newport Beach Ordinance No.'s hood may go far in any request for reasonable School. 2007-8, 2008-05. accommodation. Additionally, providing such evidence will demonstrate the "legitimacy" of the 24. Claims were brought pursuant to the FHA, site and distinguish it from "illegitimate" facili- the Americans with Disabilities Act, the ties which may be problematic for the agency. Rehabilitation Act of 1974 (29 U.S.C. In short, the FHA provides a number of options ENDNOTES § 794 et seq.), 42 U.S.C. § 1983, which can be helpful in ensuring that commu- California Fair Employment & Housing nines remain protected without infringing on 1. The federal Fair Housing Act is codified Act, the California Alcohol & Drug individuals' rights to fair housing. Practitioners at 42 U.S.C. § 3601, et seq. California's Program (Health & Safety Code § 11834 representing local agencies may undertake a State law counterpart, the California Fair et seq.), California Civil Code § 52.1, number of steps when faced with FHA scenarios Employment and Housing Act, is codified and federal and state causes of action for which may help to screen "legitimate" facilities at Gov't Code § 12900, et seq. This article inverse condemnation. from those which use the FHA to mask their focuses on the requirements of the federal Act, although the California Act is inter- 25. Settlement agreement available at motives. Conversely, those representing sober preted according to federal law precedents newnortbeachca eov. living operators, residents, and advocates should not take the FHA for granted, but should be 2. Oxford House v. Township of Cherry Hill (N.J. 26. See, e.g., Brianna Bailey, Daily Pilot, "Civic aware that its provisions must be properly uti- 1992) 799 F.Supp. 450, 453. Center Costs Mulled" (Oct 27, 2009) lized to protect legitimate sober living facilities. (describing City of Newport Beach City 3. http: / /www.oxfordhouse.org/userfiles /file/ Council hearing approving continued VI. CONCLUSION - QUESTIONSTHAT oxford_house_history.php. operation of Pacific Shores Recovery, a REMAIN UNANSWERED 4. Tsombanidis v. West Haven Fire Dept, sober living facility which underwent City • (2d Dist. 2003) 352 F.3d 565, 570. review, and noting additional sober living While cases have done much to flush out the operators which either have lawsuits against application of the FHA in the context of sober 5. See fit. 24, ante. the City or are pursuing administrative living regulation, much remains unanswered. 6. Health & Safety Code § 1500, et seq. review pursuant to the City regulatory For example, while cities and counties may seek provisions). 19 The Public Law Journal • www.calbar.ca.gov/publidaw • Vol. 33, No.2, Spring 2010 27. 42 U.S.C. § 3604(a) (emphasis added). 55. Id. 83. Id. at 578. 28. 42 U.S.C. § 36502(6). 56. Id. 84. 42 U.S.C. 3607(b)(1). II 29. Mills Music, Inc. v. Snyder (1985) 468 U.S. 57. Oxford House, Inc., v. Town of Babylon, 819 85. City of Edmonds v. Oxford House. (1995) 153, 164. F.Supp. 1179, 1186 ( E.D.N.Y. 1993); 514 U.S. 725, 728. 30. Lakeside Resort Enterprises v. Board of Horizon House Developmental Service Inc., v. 86. Id. Supervisors of Palmyra (3d Cir. 2006) 455 Town of Upper Southampton (E.D.Pa. 1992) F.3d 154, 158. 804 F. Supp 683, 699. 87. Id. 31. Id. at 159. 58. Sanghvi v. City of Claremont (9th Cir. 2003) 88. Turning Point, Inc., v. City of Caldwell (1996) 328 F.3d 532. 74 F.3d 941. 32. Schwarz v. City of Treasure Island (11th Cir. 59. 42 U.S.C. § 3604(0(3). 89. Id. at 943. 2008) 544 F.3d 1201, 1214. 33. Johnson v. Dixon (D.D.C. 1991) 786 60. Corporation of the Episcopal Church in Utah 90. Id. F.Supp. 1, 4. v. West Valley City (2000) 119 F.Supp.2d 91. Id at 944. 1215, 1221. 34. Schwarz v. City of Treasure Island, 544 F.3d 92. Id. at 1214 1215. 61. Corporation of the Episcopal Church in Utah v. West Valley City (2000) 119 F.Supp.2d 93. Gibson v. County of Riverside (2002) 181 35. Corporation of the Episcopal Church in Utah 1215, 1221. F.Supp.2d 1057, 1072. v. West Valley City (2000) 119 F.Supp.2d 62. Behavioral Health Services v. City of Gardena 94. Id. at 1075. 1215, 1219. (C.D. Cal. February 26, 2003) No. CV 95. Id. at 1075, 1076. 36. Oxford House v. Town of Babylon (E.D.N.Y. 01 -07183, 2003 WL 21750852. 1993) 819 F.Supp. 1179, 1182. 63. Tsombanidis v. West Haven Fire Dept. (2d 96. City of Edmonds v. Oxford House, Inc. (1995) 37. Id. Cir. 2003) 352 F.3d 565, 578. 514 U.S. 725, 731. 38. Id. at 1185. 64. In a recent case, for example, a teacher who 97. Schwarz v. City of Treasure Island (11th Cir. was retaliated against after advocating for 2008) 544 F.3d 1201. 39. Corporation of the Episcopal Church in Utah disabled students has standing to sue under 98. Ewing v. City Carmel-by-the-Sea (1991) 234 v. West Valley City (2000) 119 F.Supp.2d th Rehabilitation Act and the ADA. CalApp.3d 1579, 1593. 1215, 1220. Barker v. Riverside County Office of Education 40. Tsombanidis v. West Haven Fire Dept. (2d (9th Cir. Cal. 2009) 2009 DJDAR 15159. 99. Behavioral Health Services v. City of Gardena, Dist. 2003) 352 F.3d 565, 574-75. No. CV 01 -07183, 2003 WL 21750852, 10 65. Smith v. Pacific Properties (9th Cir. 2004) 358 (C.D. Cal. February 26, 2003). 41. Oxford House v. Town of Babylon (E.D.N.Y. F.3d 1097,1102. 100. Oxford House v. Township of Cherry Hill (D. III 1993) 819 F.Supp. 1179, 1181. 66. Gov't Code § 12989.1. N.J. 1992) 799 F.Supp. 450, 462; Behavioral 42. Id. 67. Gov Code § 12927(g). Health Services v. City of Gardena (C.D. Cal. 43. Id February 26, 2003) No. CV 01 -07183, 68. Fair Housing of Marin v. Combs (9th Cir. 2003 WL 21750852, 10. 44. Oxford House v. Town of Babylon (E.D.N.Y. 2002) 285 F.3d 899. 101. 45 CFR §§ 160, 162, 164; Health 1993) 819 F.Supp. 1179, 1181 69. Id. at 905. Insurance Portability and Accountability 45. Id. at 1183. 70 Id. Act of 1996, Public Law 104 -191. 46. Id 71. Smith v. Pacific Properties an d D evelopment 102. Oxford House v. Township of Cherry Hill (D. 47. Id. Corp. (9th Cir. 2004) 358 F.3d 1097, 1101. N.J. 1992) 799 F.Supp. 450, 460. 103. Oxford House v. Town of Babylon ( E.D.N.Y. 48. Oxford House, Inc., v. Town of Babylon, 819 72. Tsombanidis v. West Haven Fire Dept. (2d 1993) 819 F.Supp. 1179, 1182 -1185. F.Supp. 1179, 1185 (E.D.N.Y. 1993), citing Cir. 2003) 352 F.3d 565, 578. 42 U.S.C. § 3604(f)(3)(B). 73. Oxford House v. City of St Louis (8th Cir. 104. City of Santa Barbara v. Adamson (1980) 27 49. 42 U.S.C. § 3602(h). 1996) 77 F.3d 249. Cal. 3d 123, 132 -33; City of Chula Vista v. Pagard (1981) 115 CaLApp.3d 785, 795; 50. Behavioral Health Services v. City of Gardena 74. Id. at 253. College Area Renters & Landlord Assn. v. City (C.D. Cal. Feb. 26, 2003) No. CV of San Diego (1996) 43 CalApp.4th 677, 01 -07183, 2003 WL 21750852. 75. Bryant Woods Inn v. Howard County (4th Cir. 68788 1997) 124 F.3d 597, 601-602. 51. Township of Cherry Hill, 799 F.Supp. at 76. U.S. v. Village of Palatine (7th Cir. 1994) 37 105. Id. 463 -66. F.3d 1230, 1234. 106. Tsombanidis v. West Haven Fire Dept. (2d 52. See, Township of Cherry Hill, 799 F.Supp. at 77. Cal. Const. Article XI, § 7. Cir. 2003) 352 F.3d 565, 578. 462-63; Horizon House Developmental Service 107. California Housing Development Law, Inc., v. Town of Upper Southampton, 804 F. 78. Gov't code 65000, et seq. Gov't Code § 65913, et seq.; California Supp 683, 699-670 (E.D.Pa. 1992); Stewart 79. Gov't Code 65850. Housing Element Law, Gov't Code B. McKinney Foundation, Inc., v. Town Plan § 65580, et seq. & Zoning Commission of the Town of Fairfield, 80. Gov't Code 65103 (regulation pursuant 790 F.Supp. 1197, 1221 (D.Conn. 1992). to general plan designations); Gov't 53. A.M. v. Albertson, LLC (2009) Cal. Ct. Code 66410, et seq. (regulation through of Appeal, First App. Dist., Case No. implementation of Subdivision Map Act). • Al22307. 81. Oxford House v. Township of Cherry Hill 54. The Corporation of the Episcopal Church of (D•N.J. 1992) 799 F.Supp. 450. Utah v. West Valley City (D. Utah 2000) 119 82. Tsombanidis v. West Haven Fire Dept. F.Supp.2d 1215, 1221. (2d Cir. 2003) 352 F.3d 565, 574-75. 20 1 s • EXHIBIT "E" FLORIDA STATUTES SECTION 397.311 - DEFINITIONS 0 • 1/22/2015 Chapter 397 - SUBSTANCE ABUSE SERVICES : Florida PUBLIC HEALTH :: 2005 Florida Code :: Florida Code :: US Cafes and Statutes :: US Law :: (8) It is the intent of the Legislature to provide, within the limits of appropriations and safe management of the correctional system, substance abuse services to substance abuse • impaired offenders who are incarcerated within the Department of Corrections, in order to better enable these inmates to adjust to the conditions of society presented to them when their terms of incarceration end. (9) It is the intent of the Legislature to provide for assisting substance abuse impaired persons primarily through health and other rehabilitative services in order to relieve the police, courts, correctional institutions, and other criminal justice agencies of a burden that Interferes with their ability to protect people, apprehend offenders, and maintain safe and orderly communities. (10) It is the purpose of the Legislature to establish a clear framework for the comprehensive provision of substance abuse services in the context of a coordinated and orderly system. (11) It is the intent of the Legislature that the freedom of religion of all citizens shall be inviolate. Nothing in this act shall give any governmental entity jurisdiction to regulate religious, spiritual, or ecclesiastical services. • History. -s. 2, ch. 93 -39. 397.311 Definitions. - -As used in this chapter, except part VIII: (1) "Ancillary services" are services which include, but are not limited to, special diagnostic, prenatal and postnatal, other medical, mental health, legal, economic, vocational, employment, and educational services. (2) "Assessment" means the systematic evaluation of information gathered to determine the nature and severity of the client's substance abuse problem and the client's need and motivation for services. Assessment entails the use of a psychosocial history supplemented, as required by rule, by medical examinations, laboratory testing, and psychometric measures. (3) "Authorized agent of the department" means a person designated by the department to conduct any audit, inspection, monitoring, evaluation, or other duty imposed upon the department pursuant to this chapter. An authorized agent must be identified by the • department as: (a) Qualified by the requisite expertise and experience; httplllaw.justia. can / codes/ Bori /2005/T'itleXXlx/ch0397.htmI 4/86 1/22/2015 Chapter, 397 - SUBSTANCE ABUSE SERVICES :: Florida PUBLIC HEALTH :: 2005 Florida Code :. Florida Code :: US Codes and Statutes :: US Law :: .. (b) Having a need to know the applicable information; and • (c) Having the assigned responsibility to carry out the applicable duty. (4) "Beyond the safe management capabilities of the service provider" refers to a client who is in need of: (a) Supervision; (b) Medical care; or (c) Services, beyond that which the service provider or service component can deliver. (5) "Client" means a recipient of alcohol or other drug services delivered by a service provider but does not include an inmate pursuant to part VIII unless expressly so provided. (6) "Client identifying information" means the name, address, social security number, fingerprints, photograph, and similar information by which the identity of a client can be determined with reasonable accuracy and speed either directly or by reference to other • publicly available information. (7) "Court" means, with respect to all involuntary proceedings under this chapter, the circuit court of the county in which the judicial proceeding is pending or where the substance abuse impaired person resides or is located, and includes any general or special magistrate that may be appointed by the chief judge to preside over all or part of such proceeding. Otherwise, "court" refers to the court of legal jurisdiction in the context in which the term is . used in this chapter. (8) "Department means the Department of Children and Family Services. (9) "Director" means the chief administrative officer of a service provider. (10) "Disclose" or "disclosure" means a communication of client identifying information, the affirmative verification of another person's communication of client identifying information, or the communication of any information of a client who has been identified. Any disclosure made pursuant to this chapter must be limited to that information which is necessary to carry out the purpose of the disclosure. • (11) "Fee system" means a method of establishing charges for services rendered, in accordance with a client's ability to pay, used by providers that receive state funds. http://faw.justia.com/codes/flonda/2005/Title)C<IX/ch0397.html 1/22/2015 Chapter 397'- SUBSTANCE ABUSE SERVICES :: Florida PUBLIC HEALTH 2005 Florida Code Florida Code :: US Codes and Statutes :: US Law ::.... (12) "For profit" means registered as for profit by the Secretary of State and recognized by the Internal Revenue Service as a for - profit entity. ��. ht to the attention of law enforcement 13 "Habitual abuser" means a person who is brought ) p 9 for being substance impaired, who meets the criteria for involuntary admission in s. 397.675, and who has been taken into custody for such impairment three or more times during the preceding 12 months. (14) "Hospital" means a hospital or hospital -based component licensed under chapter 395. (15) "Impaired" or "substance abuse impaired" means a condition involving the use of alcoholic beverages or any psychoactive or mood - altering substance in such a manner as to induce mental, emotional, or physical problems and cause socially dysfunctional behavior. (16) "Individualized treatment or service plan" means an immediate and a long-range plan for substance abuse or ancillary services developed on the basis of a client's assessed needs. (17) "Law enforcement officer" means a law enforcement officer as defined in s. 943.10(1). (18) "Licensed service provider" means a public agency under this chapter, a private for- • profit or not- for - profit agency under this chapter, a physician or any other private practitioner licensed under this chapter, or a hospital that offers substance abuse impairment services through one or more of the following licensable service components: (a) Addictions receiving facility., which is a community- based facility designated by the department to receive, screen, and assess clients found to be substance abuse impaired, in need of emergency treatment for substance abuse impairment, or impaired by substance abuse to such an extent as to meet the criteria for involuntary admission in s. 397.675, and to provide detoxification and stabilization. An addictions receiving facility must be state- owned, state - operated, or state - contracted, and licensed pursuant to rules adopted by the department's Substance Abuse Program Office which include specific authorization for the provision of levels of care and a requirement of separate accommodations for adults and minors. Addictions receiving facilities are designated as secure facilities to provide an intensive level of care and must have sufficient staff and the authority to provide environmental security to handle aggressive and difficult- to - manage behavior and deter elopement. Detoxification, which uses medical a psychological rocedures and a supportive (b ) procedures pportive counseling regimen to assist clients in managing toxicity and withdrawing and stabilizing http:Maw.justia.coln/ codes/ florida /200S/TitleXXIX/ch0397.him! 3/35 1/22/2015 Chapter 397- SUBSTANCE ABUSE SERVICES' :: Florida PUBLIC HEALTH .:'2005 Florida Code :: Florida Code :: US Codes and Statutes :: US Law ::... from the physiological and psychological effects of substance abuse impairment. (c) Intensive inpatient treatment, which includes a planned regimen of professionally directed evaluation, observation, medical monitoring, and clinical protocols provided 24 hours per day, 7 days per week, in a highly structured, live -in environment. (d) Residential treatment, which provides a structured, live -in environment within a nonhospital setting on a 24- hours -a -day, 7- days- a -week basis, and which includes: 1. Facilities that provide room and board and treatment and rehabilitation within the primary residential facility; and 2. Facilities that are used for room and board only and in which treatment and rehabilitation activities, are provided on a mandatory basis at locations other than the primary residential facility. In this case, facilities used for room and board and for treatment and rehabilitation are operated under the auspices of the same provider, and licensing and regulatory requirements would apply to both the residential facility and all other facilities in which treatment and rehabilitation activities occur. (e) Day and night treatment, which provides a nonresidential environment with a structured schedule of treatment and rehabilitation services. (f) Outpatient treatment, which provides individual, group, or family counseling for clients by appointment during scheduled operating hours, with an emphasis on assessment and treatment. (g) Medication and methadone maintenance treatment that uses methadone or other medication as authorized by state and federal law, in conjunction with medical, rehabilitative, and counseling services in the treatment of clients who are dependent upon opioid drugs. (h) Prevention, which is a process involving strategies aimed at the individual, the environment, or the substance, which strategies preclude, forestall, or impede the development of substance abuse problems and promote responsible personal and social growth of individuals and families toward full human. potential. (i) Intervention, which consists of structured services targeted toward individuals or groups at risk and focused on reducing those factors associated with the onset or the early stages • of substance abuse, and related problems. (19) "Medical monitoring" means oversight and treatment, 24 hours per day by medical httpi/1aw.justia. can / codes/ Borida /2005/TitIeXXIX/ch0397.html Wa 1/22/2015 Chapter 397 - SUBSTANCE ABUSE SERVICES :: Florida PUBLIC HEALTH : 2005 Florida Code :: Florida Code :: US Codes and Statutes US Law ::... personnel who are licensed under chapter 458, chapter 459, or chapter 464, of clients whose subacute biomedical, emotional, psychosocial, behavioral, or cognitive problems are • so severe that the clients require intensive inpatient treatment by an interdisciplinary team. (20) "Not for profit" means registered as not for profit by the Secretary of State and recognized by the Internal Revenue Service as a not -for- profit entity. (21) "Physician" means a person licensed under chapter 458 to practice medicine or licensed under chapter 459 to practice osteopathic medicine, and may include, if the context so indicates, an intern or resident enrolled in an intern or resident training program affiliated with an approved medical school, hospital, or other facility through which training programs are normally conducted. (22) "Preliminary screening" means the gathering of initial information to be used in determining a person's need for assessment or for referral. (23) "Private practitioner" means a physician licensed under chapter 458 or chapter 459, a psychologist licensed under chapter 490, or a clinical social worker, marriage and family therapist, or mental health counselor licensed under chapter 491. (24) "Program evaluation" or "evaluation" means a systematic measurement of a service provider's achievement of desired client or service outcomes. (25) "Qualified professional" means a physician licensed under chapter 458 or chapter 459; a professional licensed under chapter 490 or chapter 491; or a person who is certified through a department - recognized certification process for substance abuse treatment services and who holds, at a minimum, a bachelor's degree. A person who is certified in substance abuse treatment services by a state - recognized certification process in another state at the time of employment with a licensed substance abuse provider in this state may perform the functions of a qualified professional as defined in this chapter but must meet certification requirements contained in this subsection no later than 1 year after his or her date of employment. (26) "Quality assurance" means the objective and internal systematic monitoring of the appropriateness and quality of client care rendered by a service provider. (27) "Secure facility," except where the context indicates a correctional system facility, means a provider that has the authority to deter the premature departure of involuntary • clients whose leaving constitutes a violation of a court order or community - based supervision as provided by law. The term "secure facility" includes addictions receiving httpfilaw.justia.com/codes/ilorida/2005/TitleXAX/ch0397.html itleXXIX/ch0397.html &BS 1/22/2015 Chapter 397 - SUBSTANCE SERVICES Florida PUBLIC HEALTH :: 2005 Florida Code :: Florida Code:: US Codes and Statutes ;: US Law ::... facilities and facilities authorized by local ordinance for the treatment of habitual. abusers. • (28) "Service provider" or "provider" means a public agency, a private for - profit or not-for- profit agency, a person who is a private practitioner, or a hospital licensed under this chapter or exempt from licensure under this chapter. (29) "Service provider personnel" or "personnel" includes all owners, directors, chief financial officers, staff, and volunteers, including foster parents, of a service provider. (30) "Stabilization" means: (a) Alleviation of a crisis condition; or (b) Prevention of further deterioration, and connotes short -term emergency treatment. 98 -262; s. 107, ch. 99 -8; s. 52, ch. 2000- s. ch. 5 228• S. 1, ch. 98 107• s. 1, ch. , History. 2, ch. 93 39; s 55, 9 > 139; s. 1, ch. 2002 -196; s. 78, ch. 2004 -11; s. 2, ch. 2005 -55. 397.321 Duties of the department--The department shall: l comprehensive state plan for the ( 1 ) Develop a provision of substance abuse services. The p p p plan must include: (a) Identification of incidence and prevalence of problems related to substance abuse. (b) Description of current services. (c) Need for services. (d) Cost of services. (e) Priorities for funding. (f) Strategies to address the identified needs and priorities. ( g) Resource planning. (2) Ensure that a plan for substance abuse services is developed at the district level in • accordance with the provisions of part IV of chapter 394. (3) Provide on a direct or contractual basis, within the context of funds made available by http : //law.justia.com/ codes/ florida /2005/TitieXXIX/ch0397.html 9186 l m n 0 Z • EXHIBIT "F" FLORIDA ADMINISTRATIVE CODE • • December 12, 2005 • SUBSTANCE ABUSE PROGRAM OFFICE CHAPTER 65D -30 SUBSTANCE ABUSE SERVICES Title 65D- 30.001 Definitions 65D- 30.002 Department Licensing and Regulatory Standards 65D- 30.003 Common Licensing Standards 65D- 30.004 Standards for Addictions Receiving Facilities 65D- 30.005 Standards for Detoxification 65D- 30.006 Standards for Intensive Inpatient Treatment 65D- 30.0061 Standards for Residential Treatment 65D- 30.007 Standards for Day or Night Treatment 65D- 30.008 With Host Homes Standards for Day or Night Treatment 65D- 30.0081 With Community Housing Standards for Day or Night Treatment 65D- 30.009 Standards for Intensive Outpatient Treatment 65D- 30.0091 Standards for Outpatient Treatment 65D- 30.010 Standards for Aftercare 65D - 30.011 Standards for Intervention 65D- 30.012 Standards for Prevention 65D- 30.013 Standards for Medication and Methadone 65D- 30.014 Maintenance Treatment Page 1 of 161 December 12, 2005 65D- 30.001 Title. These rules shall be known as the licensure standards for "Substance Abuse Services ". Specific Authority 397.321(5) FS. Law Implemented 397 FS. History -New 5- 25 -00, Amended 4 -3 -03. 65D- 30.002 Definitions. (1) "Abbreviated Treatment Plan" means a shorter version of a treatment plan that is developed immediately following placement in an addictions receiving facility or detoxification component and is designed to expedite planning of services typically provided to clients placed in those components. (2) "Accreditation" means the process by which a • provider satisfies specific nationally accepted administrative, clinical, medical, and facility standards applied by an accrediting organization that has been approved by the department. (3) "Aftercare Plan" means a written plan that specifies goals to be achieved by a client or family involved in aftercare. (4) "Ancillary Services" means services such as legal, vocational, employment, mental health, prenatal care, diagnostic testing, public assistance, child care, and transportation, that may be either essential or incidental to a client's recovery. (5) "Assessment" means a process used to determine the type and severity of a client's substance abuse problem and • Page 2 of 161 December 12, 2005 includes a psychosocial assessment and, depending upon the component, a physical health assessment. (6) "Authorized Agent of the Department" means a qualified person designated by the department to conduct licensing inspections and other regulatory duties permitted in Chapter 397, F.S., Part II. (7) "Case Management" means a process which is used by a provider to ensure that clients receive services appropriate to their needs and includes linking clients to services and monitoring the delivery and effectiveness of those services. (8) "Certification" means the process by which an individual achieves nationally accepted standards of competency and proficiency in the field of substance abuse through • professional experience and a curriculum of study for addiction professionals that has been recognized by the department. (9) "Client Registry" means a system which is used by two or more providers to share information about clients who are applying for or presently involved in detoxification or maintenance treatment using methadone, for the purpose of preventing the concurrent enrollment of clients with more than one methadone provider. (10) "Client" or "Participant" means any person who receives substance abuse services from a provider. (11) "Client or Participant Record" means the record of substance abuse services provided to a client or participant and includes documentation of progress. • Page 3 of 161 December 12, 2005 (12) "Clinical Services" means services such as screening, assessment, placement, treatment planning, counseling, and case management. (13) "Clinical Staff" means those employees of a provider who are responsible for providing clinical services to clients. (14) "Clinical Summary ", as used in the context of these rules, means a written statement summarizing the results of the psychosocial assessment relative to the perceived condition of the client and a further statement of possible service needs based on the client's condition. (15) "Competency and Ability of Applicant" means a determination that an applicant for a license under Chapter 397, F.S., is able or unable to demonstrate, through a background check on education and employment history, the capability of providing substance abuse services in accordance with applicable laws and regulations. (16) "Component" means the operational entity of a provider that is subject to licensing. The primary components are listed and defined below. (a) "Addictions Receiving Facility" is a secure, acute -care, residential facility operated 24 hours - per -day, 7 days - per -week, designated by the department to serve persons found to be substance abuse impaired as described in Section 397.675, F.S., and who meet the placement criteria for this component. Page 4 of 161 December 12, 2005 (b) "Detoxification" is a process involving sub -acute care that is provided on a residential or an outpatient basis to assist clients who meet the placement criteria for this component to withdraw from the physiological and psychological effects of substance abuse. (c) "Intensive Inpatient Treatment" includes a planned regimen of evaluation, observation, medical monitoring, and clinical protocols delivered through an interdisciplinary team approach provided 24 hours per day, 7 days per week in a highly structured, live -in environment. (d) "Residential Treatment" is provided on a residential basis 24 hours - per -day, 7 days - per -week, and is intended for clients who meet the placement criteria for this • component. For the purpose of these rules, there are five levels of residential treatment that vary according to the type, frequency, and duration of services provided. (e) "Day or Night Treatment with Host Homes" is provided on a nonresidential basis at least three hours each day and at least 12 hours each week and is intended for clients who meet the placement criteria for this level of care. This component also requires that each client reside with a host family as part of the treatment protocol. (f) "Day or Night Treatment with Community Housing" is provided on a nonresidential basis at least 5 hours each day and at least 25 hours each week and is intended for clients who i Page 5 of 161 December 12, 2005 • can benefit from living independently in peer community housing while undergoing treatment. (g) "Day or Night Treatment" is provided on a nonresidential basis at least three hours per day and at least 12 hours each week and is intended for clients who meet the placement criteria for this component. (h) "Intensive Outpatient Treatment" is provided on a nonresidential basis and is intended for clients who meet the placement criteria for this component. This component provides structured services each day that may include ancillary psychiatric and medical services. (i) "Outpatient Treatment" is provided on a nonresidential basis and is intended for clients who meet the placement criteria for this component. (j) "Aftercare" involves structured services provided to individuals who have completed an episode of treatment in a component and who are in need of continued observation and support to maintain recovery. (k) "Intervention" includes activities and strategies that are used to prevent or impede the development or progression of substance abuse problems. (1) "Prevention" includes activities and strategies to that are used to preclude the development o f substance abuse problems. (m) "Medication and Methadone Maintenance Treatment" is P rovided on a nonresidential basis which utilizes methadone or other approved medication in combination with clinical Page 6 of 161 December 12, 2005 • services to treat persons who are dependent upon opioid drugs, and is intended for persons who meet the placement criteria for this component. (17) "Control of Aggression" means the application of de- escalation and other approved techniques and procedures to manage aggressive client behavior. (18) "Co- occurring Disorder" means a diagnosis of a substance abuse disorder and a concurrent diagnosis of a psychiatric disorder. (19) "Counseling" means the process, conducted in a facility licensed under Chapter 397, F.S., of engaging a client in a discussion of issues associated with the client's substance • abuse and associated problems in an effort to work toward a constructive resolution of those problems and ultimately toward recovery. (20) "Counselor" means a member of the clinical staff, working in a facility licensed under Chapter 397, F.S., whose duties primarily consist of conducting and documenting Services such as counseling, psycho - educational groups, psychosocial assessment, treatment planning, and case management. (21) "Court Ordered" means the result of an order issued by a court requiring an individual's participation in a licensed component of a provider under the following authority: (a) Civil involuntary as provided under Sections 397.6811 and 397.693, F.S.; Page 7 of 161 December 12, 2005 (b) Treatment of habitual substance abusers in licensed secure facilities as provided under Section 397.702, F.S.; and (c) Offender referrals as provided under Section 397.705, F.S. (22) "Department" means the Department of Children and Family Services, created pursuant to Section 20.19, F.S. (23) "Diagnostic Criteria" means prevailing standards which are used to determine a client's mental and physical condition relative to their need for substance abuse services, such as those which are described in the current Diagnostic and Statistical Manual of Mental Disorders. (24) "Diagnostic Services" means services that are provided to clients who have been assessed as having special needs and that will assist in their recovery such as educational tests, psychometric tests and evaluation, psychological and psychiatric evaluation and testing, and specific medical tests. (25) "Direct Care Staff" means employees and volunteers of a provider who provide direct services to clients. (26) "Direct Services" means services that are provided by employees or volunteers who have contact or who interact with clients on a regular basis. (27) "Discharge Summary" means a written narrative of the client's treatment record describing the client's accomplishments and problems during treatment, reasons for discharge, and recommendations for further services. Page 8 of 161 1 December 12, 2005 (28) "District Office" means a local or regional office of the department (29) "Financial Ability" means a provider's ability to secure and maintain the necessary financial resources to provide services to clients in compliance with required standards. (30) "Impairment" means a physical or psychological condition directly attributed to the use of alcohol or other substances of abuse which substantially interferes with an individual's level of functioning. (31) "Inmate Substance Abuse Programs" include substance abuse services provided within facilities housing only 411 inmates and operated by or under contract with the Department of Corrections. (32) "Initial Treatment Plan" means a preliminary, written plan of goals and objectives intended to inform the client of service expectations and to prepare the client for service provision. (33) "Intervention Plan" means a written plan of goals and objectives to be achieved by a client who is involved in intervention services. (34) "Involuntary" means the status ascribed to a person who meets the criteria for admission under Section 397.675, F.S. • Page 9 of 161 December 12, 2005 (35) "Licensed Bed Capacity" means the total bed capacity of addictions receiving facilities, residential detoxification facilities, and residential facilities. (36) "Licensing Fee" means revenue collected by the department from a provider required to be licensed under Section 397.407, F.S. (37) "Medical Director" means a physician licensed under Chapters 458 or 459, F.S., who has been designated to oversee all medical services of a provider and has been given the authority and responsibility for medical care delivered by a provider. (38) "Medical History" means information on the client's past and present general physical health, including the 411 effect of substance abuse on the client's health. (39) "Medical Maintenance" means special clinical protocols that permit extending the amount of consecutive take out medication provided to clients who are involved in medication and methadone maintenance treatment and who qualify through a special exemption from the department for participation under these protocols. Medical maintenance may be either partial (13 consecutive take -outs) or full (27 consecutive take - outs). (40) "Medical Monitoring" means evaluation, care, and treatment, by medical personnel who are licensed under chapter 458, chapter 459, or chapter 464, of clients whose substance abuse and related problems are severe enough to require intensive inpatient treatment using an interdisciplinary team approach. Page 10 of 161 December 12, 2005 • (41) "Medication Error" means medication that is administered or dispensed to a client in a dose that is higher or lower, with greater or lesser frequency, or that is the wrong medication than that which is prescribed under a physician's order and has the potential to harm the patient. (42) "Medication and Methadone Maintenance Treatment Sponsor" means a representative of a medication and methadone maintenance treatment provider who is responsible for its operation and who assumes responsibility for all its employees and volunteers, including all practitioners, agents, or other persons providing services at the provider. (43) "Nursing Physical Screen" means a procedure for taking a client's medical history and vital signs and recording • any general impressions of a client's current physical condition, general body functions, and current medical problems. (44) "Nursing Support Staff" means persons who assist Registered Nurses and Licensed Practical Nurses in carrying out their duties, but who are not licensed nurses. (45) "Operating Procedures" means written policies and procedures governing the organization and operation of a provider that include methods of implementation and accountability. (46) "Organizational Capability" means a provider's ability to implement written operating procedures in conformance with required standards. (47) "Overlay" means a component operated within facilities not owned or operated by a provider. • Page 11 of 161 December 12, 2005 (48) "Physical Examination" means a medical evaluation of the client's current physical condition. (49) "Physical Health Assessment" means a series of services that are provided to evaluate a client's medical history and present physical condition and include a medical history, a nursing physical screen, a physical examination, laboratory tests, tests for contagious diseases, and other related diagnostic tests. (50) "Physician" means a person licensed to practice medicine under Chapters 458 or 459, F.S. (51) "Placement" means the process used to determine client admission to, continued stay in, and transfer or discharge from a component in accordance with specific criteria. • (52) "Prevention Counseling" means a discussion with a participant involved in a prevention component that follows the objectives established in the prevention plan and is intended to reduce risk factors and increase protective factors. (53) "Prevention Plan" means a plan of goals to be achieved by a client or family involved in structured prevention activities on a regularly scheduled basis. (54) "Primary Counselor" means an employee who is part of the clinical staff and who has primary responsibility for delivering and coordinating clinical services for specific clients. (55) "Private Practice ", as used in these rules, means a sole proprietorship, an individual or individuals using shared • Page 12 of 161 December 12, 2005 office space, or other business entity, required to be licensed under Chapter 397, F.S. (56) "Privately Funded Provider" means a provider which does not receive funds directly from the department, Medicaid, or another public agency, and which relies solely on private funding sources. (57) "Program Office" means the specific office of the department identified as the single state authority for substance abuse. (58) "Progress Notes" mean written entries made by clinical staff in the client record that document progress or lack thereof toward meeting treatment plan objectives, and which generally address the provision of services, the client's • response to those services, and significant events. (59) "Protective Factors" means those conditions that inhibit, reduce, or protect against the probability of the occurrence of drug use or abuse. (60) "Provider" means a public agency, a private for - profit or not - for - profit agency, a person who is in private practice, and a hospital, licensed under Chapter 397, F.S., or exempt from licensure. (61) "Psychosocial Assessment" means a series of evaluative measures designed to identify the behavioral and social factors involved in substance abuse and its symptoms, and is used in the determination of placement and the development of the treatment plan. • Page 13 of 161 December 12, 2005 (62) "Publicly Funded Provider" means a provider that receives funds directly from the department, Medicaid, or another public agency or is a state agency or local government agency. (63) "Qualified Professional" means a physician licensed under Chapter 458 or 459, F.S., a practitioner licensed under Chapter 490 or 491, F.S., or a person who is certified through a department - recognized certification process as provided for in subsection 397.311(25), F.S., and Section 397.416, F.S. Individuals who are certified are permitted to serve in the capacity of a qualified professional, but only within the scope of their certification. (64) "Quality Assurance" means a formal method of evaluating the quality of care rendered by a provider and is used • to promote and maintain an efficient and effective service delivery system. Quality assurance includes the use of a quality improvement process to prevent problems from occurring so that corrective efforts are not required. (65) "Restraint" means: (a) Any manual method used or physical or mechanical device, material, or equipment attached or adjacent to a client's body that he or she cannot easily remove and that restricts freedom of movement or normal access to one's body; and (b) A drug used to control a client's behavior when that drug is not a standard treatment for the client's condition. (66) "Risk Factors" means those conditions affecting a group, individual, or defined geographic area that increase the • likelihood of a substance use or substance abuse problem. Page 14 of 161 December 12, 2005 (67) "Screening" means a process involving a brief review of a person's presenting problem to determine the person's appropriateness and eligibility for substance abuse services and the possible level of services required. (68) "Seclusion" means the use of a secure, private room designed to isolate a client who has been determined by a physician to pose an immediate threat of physical harm to self or others. (69) "Services" means assistance that is provided to clients in their efforts to become and remain substance free such as counseling, treatment planning, vocational activities, educational training, and recreational activities. (70) "Stabilization" means the use of short -term 411 procedures for the purpose of alleviating an acute condition related to impairment or to prevent further deterioration of a client who is impaired. (71) "Substantial Compliance" means an applicant for a new license that is in the initial stages of developing services, has demonstrated the ability to implement the requirements of these rules through operating procedures, and is thereby eligible for a probationary license. (72) "Substantial Noncompliance" means that a provider operating on a regular license has significant violations, or a pattern of violations, which affects the health, safety, or welfare of clients and, because of those violations, is issued an interim license or is subject to other sanctions as provided for in Section 397.415, F.S. Page 15of161 December 12, 2005 (73) "Summary Notes" means a written record of the progress made by clients involved in intervention services and Level 2 prevention services. (74) "Supportive Counseling" means a form of counseling that is primarily intended to provide information and motivation to clients. (75) "Transfer Summary" means a written justification of the circumstances of the transfer of a client from one component to another or from one provider to another. (76) "Treatment" means specific clinical and services such as individual and group counseling. (77) "Treatment Plan" means an individualized, written plan of action that directs all treatment services and is based • upon information from the assessment and input from the client served. The plan establishes client goals and corresponding measurable objectives, time frames for completing objectives, and the type and frequency of services to be provided. Specific Authority 397.321(5) FS. Law Implemented 397.311, 397.321(1), 397.419 FS. History -New 5- 25 -00, Amended 4 -3 -03, Amended 12- 12 -05. 65D- 30.003 Department Licensing and Regulatory Standards. (1) Licensing. Page 16 of 161 %.' II • EXHIBIT "G » RECORDS FILED WITH DCF N —4 m 0 Z .o l • EXHIBIT "H" STATE OF FLORIDA MEDICAL LICENSE • • AC# 72407 >' STATE OF FLORIDA • DEPARTMENT OF HEALTH DIVISION OF MEDICAL QUALITY ASSURANCE DATE LICENSE NO. CONTROL NO. 01/09/2015 ME 57901 486717 imaassitttoki\ f-[ The MEDICAL DOCTOR named below has met all requirements of the laws and rules of the state of Florida. Expiration Date: JANUARY 31, 2017 QUALIFICATION(S): JEFFREY LEE STEIN DISPENSING PRACTITIONER 9291 GLADES ROAD STE 306 ;r T 14 BOCA RATON, FL 33434 F. Rick Scott John H. Armstrong, MD, FA S GOVERNOR STATE SURGEON GENERAL DISPLAY IF REQUIRED BY LAW • • • EXHIBIT "I" MASTER PLAN APPROVAL MSPM 15 -001 (SEE PAGE 3 OF MINUTES) • 0 MINUTES OF THE PLANNING AND DEVELOPMENT BOARD MEETING HELD IN COMMISSION CHAMBERS, CITY HALL, 100 E. BOYNTON BEACH BOULEVARD, BOYNTON BEACH, FLORIDA ON TUESDAY, JANUARY 27, 2015, AT 6:30 P.M. PRESENT: Ryan Wheeler, Vice Chair James Cherof, City Attorney James Brake Ed Breese, Principal Planner Trevor Rosecrans Stacy Weinger, Assistant City Attorney David Katz Hanna Matras, Senior Planner Brian Miller Mike Rumpf, P & Z Director Nicholas Skarecki Stephen Palermo, Alternate ABSENT: Gregory Murphy ALSO PRESENT: Mayor Jerry Taylor and Mrs. Taylor • Vice Chair Wheeler called the meeting to order at 6 p m. 1. Pledge of Allegiance The members recited the Pledge of Allegiance. 2. Introduction of the Board Vice Chair Wheeler introduced the members of the Board 3. Agenda Approval MOTION made by Mr Brake, seconded by Mr. Miller, to approve the agenda, with the addition of discussion of Chair and Vice Chair under Other. In a voice vote, the motion passed unanimously. 4. Approval of Minutes from November 25, 2014, meeting MOTION made by Mr Katz, seconded by Mr Miller, to approve the minutes as presented In a voice vote, the motion passed unanimously • Meeting Minutes Planning and Development Board • Boynton Beach, Florida January 27, 2015 5. Communications and Announcements: Report from Staff Planning and Zoning Director Mike Rumpf welcomed newcomers to the Board. He reported the City Commission did not take any final action on items previously reviewed by the Board. They did, however, table an item that will be reviewed in February 6. New Business City Attorney Cherof explained the nature of the proceedings He announced that those item were asked to raise their right to testify for or against any to e ht hand and be g sworn in. Mr. Cherof performed the swearing in for the hearings. A.1 Boynton Village & Town Center (MPMD 15 -001) — Approve Master Plan Modification request to Boynton Village & Town Center to amend a 0.42 -acre portion of SMU Parcel #5 from 16 townhomes to a four (4) story, 24,000 square foot mixed use building with medical use on the first two (2) floors and four (4) dwelling units on each of the next two (2) floors. Applicant: James Comparato, Compson Associates Group, Inc Bradley Miller, Miller Land Planning, Inc., stated he was representing Compson • Associates Group, Inc. Also with him was Bob Halula from Slattery and Associates, who provided the site plan and architecture for the project. Mr. Miller described the location and its environs, noting they wish to modify the master plan for the SMU and get an approved site plan for the 0 42 acre parcel The first two floors of the building would be 12,000 square feet of medical office space, and the top two floors would be another 12,000 square feet for eight residential units. Attorney Cherof stated it would be permissible for the applicant to present for both applications if there was no objection There would be separate public hearings for each application. Mr. Miller pointed out the features of the site plan and elevation, using a projected image He noted that the architecture blends in with the existing development around it. Mr. Miller stated they are in agreement with staff's conditions and recommendations for both applications. Mr. Miller said there will be two handicap spots in the front. If space permits, they may be able to restripe and add another spot. Vice Chair Wheeler opened and closed the public hearing MOTION made by Mr. Katz, seconded by Mr (Brian) Miller, to approve Boynton Village & Town Center (MPMD 15 -001), subject to all staff conditions. In a voice vote, the motion passed unanimously. 2 Meeting Minutes Planning and Development Board • Boynton Beach, Florida January 27, 2015 A.2 Boynton Village & Town Center (MSPM 15 -001) — Approve Major Site Plan Modification request to construct a four (4) story, 24,000 square foot mixed use building with medical use on the first two (2) floors and four (4) dwelling units on each of the next two (2) floors, and related site improvements. Applicant: James Comparato, Compson Associates Group, Inc. There were no questions from the Board Vice Chair Wheeler opened and dosed the public hearing. MOTION made by Mr. Miller, seconded by Mr. Brake, to approve Boynton Village & Town Center (MSPM 15 -001), subject to all staff conditions. In a voice vote, the motion passed unanimously. B. Interim LDR Amendments (CDRV 15 -001) — Approve proposed amendments to the Land Development Regulations (LDR), including 1) Provisions for the new zoning use Medical Care or Testing (In- Patient); 2) Continued codification of the Transit - Oriented Development (TOD) overlay development standards; 3) Amendments to the sign standards applicable to commercial uses in certain M -1 zoning districts; 4) Amendments to sign regulations to facilitate certain improvements to non - conforming signs at • shopping centers; and 5) The decrease in parking requirements for hotels. Applicant: City- initiated. Mr Rumpf introduced the item. He explained he would present the first item; Ms. Matras would present the second item, and Mr. Breese would present the remaining three items. Mr Rumpf began a PowerPoint on the amendments, beginning at 6 p.m. He concluded his presentation at 6:57 pm. Since the CRA is such a large part of the area. Mr Brake wondered why they were pulling the CRA out of it. Mr. Rumpf replied the reasons were summed up in Note #102: they do not see those types of uses being complementary to an intensive retail commercial environment where a certain synergy is desired, such as pedestrian activity. [Unable to hear Mr Brake speaking — microphone off] Mr. Rumpf continued that the parcels to the east were smaller, more compact parcels versus areas to the west where the larger commercial centers are located. Mr. Brake thought that might keep someone from putting in a medical center [Unable to hear Mr Brake speaking — microphone off and Mr Rumpf replied affirmatively if it falls under "this category." Mr. Rumpf added there is a current project called North General Medical Center that consists of medical offices, but is not a true medical center. Mr. • Brake verified that a 24 -hour emergency clinic would be permitted, since the change was intended for emergency, in- patient, 24 -hour clinics, etc. 3 Meeting Minutes Planning and Development Board Boynton Beach, Florida January 27, 2015 In response to a question by Mr. Brake, Mr. Rumpf replied the goal is to fix a weakness in the Code that does not cover this type of facility, adding that they had not yet had inquiries for them. At this point, rehab facilities are associated in the Code with hospitals, since that is the only use in the zoning regulations that allows in- patient medical. He added that the amendment would not prohibit any other type of in- patient facility, such as substance abuse treatment centers (other than the medical center). Mr. Brake cited one facility that provides overnight residential care with patients returning to the treatment facility in the daytime. Mr. Rumpf admitted there was one facility operating in the City at this time that was allowed by the reasonable accommodation process. Mr. Rumpf continued that there is always the potential of being subject to a reasonable accommodation application, but the City would be minimizing the ability of an applicant to justify a given location if it does not follow the proposed regulations. Mr Rumpf described the various stages of rehabilitation in a detoxification center. If a person gets intensive treatment during the day and then goes to group home in a residential area at night, Mr. Brake wondered if it would fall under the regulations since technically they are in- patient. Mr. Rumpf clarified that if the care is at two distinct locations, they would be out - patient only, since they are not sleeping in the commercial • environment, and are receiving intensive care in the residential neighborhood. He explained that the care given at the commercial establishment would be considered no differently than what a person would receive when going to the dentist, for example Mr Katz felt that the allowable areas for what he would call "in- patient detox" and intensive outpatient facilities are zoned out. He thought they should be allowed in a C- 3. C -2, or C -1. Furthermore, he thought it would be best if they were close to a hospital. Mr Katz pointed out sober homes are allowed in the City, which he thought were an invasive use in single - family neighborhoods. He commented that the detox centers are highly regulated, and he did not understand why staff was concerned with them being in the City. Mr Katz asked what the administrative procedure would be to allow those kinds of uses in a C -1, C -2, and C -3, perhaps within several miles of Bethesda Hospital. Mr. Rumpf responded there are several ways to address the zoning Delray Beach uses the concentration model, in an intense medical district. Their hospital core is on major arterial roadways, whereas Boynton Beach's concentrated core does not have an arterial roadway flanking it Secondly, Mr. Rumpf stated that a dental office or family practitioner could be right next door to a residential unit, because they are closed at night. Such offices are used as a transitional use to more intense commercial. In response to a comment by Mr Katz. Mr. Rumpf stated that a hospital is not as compatible with a residential environment; the hospital district is unique, but in theory, it is more intense and it would be better moved away from the lowest intensity single • family districts 4 Meeting Minutes Planning and Development Board • Boynton Beach, Florida January 27, 2015 Mr. Rumpf explained how they could open up to more districts, while maintaining the same model principles or objectives. The arterial roadway requirement already exists, so it could be put in those zoning districts He agreed with Mr. Katz that a location on Congress Avenue would be a better location than Seacrest because of the close residential area Mr Rumpf said the arterial roadways are Congress Avenue, Woolbright, Boynton Beach Boulevard, and Gateway. Mr. Katz verified that the Board could ask staff to add the ability to have the detox and intensive out - patient facilities in a C -1, C -2, or C -3 too. Mr. Rumpf directed the Board's attention to p. 5 of the report, Note #14, noting they might want to limit it to "arterial" and not "collector." In response to a question from Mr Palermo, Mr. Rumpf said there are requirements for medical waste. although they may be governed by the State Vice Chair Wheeler opened and closed the public hearing. MOTION made by Mr. Katz, seconded by Mr. Miller, to accept staffs recommendation with the additions that the Planning Director and he discussed as far as an arterial road in C -1, C -2 and C -3 with the uses of inpatient detox and intensive outpatient facilities. In a voice vote, the motion passed unanimously Ms. Matras said she would address the codification of the Transit - Oriented Development (TOD) overlay development standards She explained that the text amendments approved by the City Commission in June, 2014, did two things: established a TOD district, and allowed increased density up to 25 %. Ms. Matras pointed out the district on a map. Ms. Matras said that the City of Boynton Beach has been working with FDOT and other agencies in preparation for the expansion of the Tn-Rail commuter system to include new service on the FEC tracks. The agencies are focused on the need for improved land development patterns in advance of the proposed Boynton Beach rail station development Ms. Matras enumerated the significant features of a TOD, per the written report. She reviewed that the Comprehensive Plan adopted in 2014 supported the proposed regulation amendments, including buffer areas and density increases. Ms. Matras continued that an argument was raised when the Comprehensive Plan text amendments were brought to the City Commission and the Board: the total number of the housing units in the district is about 3,100, which equals a gross density of slightly over seven units per acre. However, in the guidelines for the Community Center (which is the model for the downtown Boynton Beach station), the suggested optimum density • is between 11 and 16 units per acres In response to a question by Mr Brake, Ms Matras stated that they are basically 5 Meeting Minutes Planning and Development Board • Boynton Beach, Florida January 27, 2015 increasing the density in the three most intense and dense land use specifications. They had previously established the minimum density, and now they are raising the density (without allowing more height) The only project at that density is the Promenade with 100 units per acre Mr. Brake established that was within the 1 /2 mile radius Vice Chair Wheeler opened and closed the public hearing MOTION made by Mr. Katz, seconded by Mr Brake, to accept the interim LDR amendments CDRV 15 -001, Item #2 In a voice vote, the motion passed unanimously. Ed Breese addressed the next item: non - conforming signs relative to M -1 zoning districts He mentioned that staff had implemented a number of recommendations from the M -1 Corridor study that was done in the past in order to approve the overall appearance of South Congress Avenue Mr Breese said that the sign regulations for those commercial uses were not addressed and explained the size difference between industrial and commercial use signs. Mr. Breese said this amendment would allow those limited commercial uses allowed on a main thoroughfare in the M -1 zoning district, the same signage regulations enjoyed by other commercial uses along that same thoroughfare. • In response to an inquiry by Mr. Miller, Mr. Breese responded that hand -held signs on corners, while distracting, are probably protected under free speech. Palm Beach Gardens is exploring a way to control them, and an ordinance will probably be brought before their commission within a few months Vice Chair Wheeler opened and closed the public hearing. MOTION made by Mr. Brake, seconded by Mr. Katz, to accept the interim LDR amendments CDRV 15 -001, Item #3, amendments to the sign standards applicable to commercial uses in certain M -1 zoning districts In a voice vote, the motion passed unanimously. Mr. Breese continued to the next item: amendments to sign regulations to facilitate certain improvements to non - conforming signs at shopping centers. He displayed several photos of signs and said that most of the signs in intense commercial districts have non - conforming signs that were built under a different Code. Mr. Breese said that under the current regulations, all a property owner can do to improve a sign is change the lettering or slide out a face and replace it with a new one. The new regulation would allow structural modification of the signs without worsening non - conformities, as long as the sign mass is not increased. In addition, Mr Breese said that under the proposed regulations a new tenant's name • could be added to a sign under provision that the entire sign is cleaned up. 6 Meeting Minutes Planning and Development Board Boynton Beach, Florida January 27, 2015 Mr. Brake was curious if any of the shopping centers that had undergone renovations were interested in updating their signs Mr Breese replied they expressed interest at the time they were going through renovations, but he did not know their current level of interest; he said they would broach the subject with them Mr. Breese said that lack of signage space on the old signs was an obstacle to getting new tenants into shopping centers If the shopping center cleans up their sign, that could encourage new tenants. In response to a question by Mr Palermo, Mr Breese said that all the signs are illuminated Mr Palermo also pointed out that one sign appeared close to wires, and Mr Breese commented that FP &L has regulations on how close they can be In response to a question by Mr. Katz, Mr. Breese stated that box add -ons would not be allowed by Code today, but were allowed in the past Also, the address is now required on the signs when they are modified. Vice Chair Wheeler wondered if any existing pole signs would interfere with the visibility triangle if they were modified to a monument sign. Mr. Breese said they would have to take that into account since most signs are at driveway entrances • Vice Chair Wheeler opened and closed the public hearing. MOTION made by Mr Brake, seconded by Mr. Miller, to accept the interim LDR amendments CDRV 15 -001, Item #4, amendments to sign regulations to facilitate certain improvements to non - conforming signs at shopping centers. In a voice vote, the motion passed unanimously Mr Breese continued on to Item #5, the decrease in parking requirements for hotels. He reported the City had higher parking requirements than most nearby communities: two parking spaces are required for a two -room hotel unit in Boynton Beach, where most require one parking space per unit All other cities surveyed had a standard number of parking spaces that was irrelevant to how many rooms there were in the unit. Mr. Breese described the parking analysis staff performed using the recently approved Towne Place Suites in Quantum Park. After deliberation, the staff decided that a 1.25 ratio of parking spaces per hotel room (no matter how many rooms it has) was adequate, since it would also accommodate a number of employees and meeting space without ancillary requirements. Furthermore, for the hotels that have a lounge or restaurant open to the public, they are adding a requirement for 50% of the rate of parking of what would normally be required if it were a stand -alone restaurant next door. Mr. Palermo verified that the 1.25 ratio means that for every four spots there is a fifth spot Mr Breese added that intends to cover the staff, meeting rooms, etc • 7 Meeting Minutes Planning and Development Board • Boynton Beach, Florida January 27, 2015 With the reduction of parking, Mr. Katz wondered if the Code would pursue more landscaping; Mr. Breese replied affirmatively Vice Chair Wheeler opened and closed the public hearing MOTION made by Mr. Katz, seconded by Mr Brake, to accept the interim LDR amendments CDRV 15 -001, Item #5, the decrease in parking requirements for hotels. In a voice vote, the motion passed unanimously. 7. Other There was a brief discussion on when to vote for Chair and Vice Chair. MOTION made by Mr. Brake, seconded by Mr Rosecrans, to have David Katz be Chair and Ryan Wheeler continue on as Vice Chair. In a voice vote, the motion passed unanimously. 8. Comments by members - none 9. Adjournment • Upon motion duly made and seconded, the meeting was adjourned at 7 p.m. [Minutes prepared by J Rubin, Prototype, Inc ] 8 • EXHIBIT "J" 42 U.S.C.A. § 290dd -2 • P § 290dd -2 TITLE 42-THE PUBLIC HEALTH. AND WELPAR,hE P716 • paragraph (1) to the provision of hospital care, relating to responsible State administrative agencies, 0 nursing home care, domiciliary care, and med- for provisions relating to single State agencies des - lcal services under such title 38 to veterans ignated pursuant to section 4573 of this title„ suffering from substance abuse. In prescribing catchlin l: -Pub. L. 96 -180, §6(b)(2)(A), amended section and implementing regulations pursuant to Subsec. e. (a). Pub. L. 96-180, §6(a), substituted "Office this paragraph. the .Secretary shall, from time of Personnel Management for "Civil Service Commis- to time, consult with the Secretary of Health slon" and inserted prOvisfdns that require compliance and Human Services in order to achieve the with provisions of subpart F of part III of title 5 and en- maximum possible coordination of the regula- courage agencies and departments to extend the prow Lions, and the implementation thereof, which grams and services to the families of alcoholic employ- they each prescribe. ees and to employees who have family members who are alcoholics, (July I. 1944, ch. 373. title V. §542, formerly Pub. Subsec. (h). Pub. L. 96 -180, §6(b)(1), designated exist- L. 91 -61,6, title II, §201, Dec. 31, 1970, 84 Stat. 1849, ing provisions as par. (1), made the Secretary respon- as amended Pub. L. 96 -180, §6(a), (b)(1), (2)(B), sible for encouragement of programs and services, re Jan. 2, 1980, 93 Stat. 1302, 1303; Pub. L. 97 -35, title quired the programs and services to be designed for ap- IX, §§961, 966(d), (e), Aug. 13, 1981, 95 Stat. 592, placation to families of employees and to employees 595; renumbered §521 of act July 1, 1944, and who have family members who are alcoholics, and amended Pub. L. 98-24, §2(b)(13), Apr. 26, 1983, 97 added pars. (2) to (4): Stat. 181; Pub. L. 98 -509. title III. §301(c)(2), Oct. EFFECTIVE DATE OF 1992 AMENDMENT 19, 1984, 98 Stat. 2364; Pub. L. 99 -570, title VI, Amendment by Pub. L. 102.321 effective Oct. 1, 1992, §6002(b)(1), Oct. 27, 1986, 100 Stat. 3207 -158; re- with provision for programs providing financial assist - numbered §542, Pub. L. 100 -77, title VI, §611(2), ance, see section 801(c), (4) of Pub. L. 102 -321, set out as July 22, 1987, 101 Stat. 516; Pub. L. 102 -321, title a note under section 236 of this title. I, § 131, July 10, 1992, 106 Stat. 368; Pub. L. 103 - 446 title XII, § 1203(a)(2), Nov. 2, 1994. 108 § 290dd - 2. Confidentiality of records Stat. 4689.): (a) Requirement CODIFICATION Records of the identity, diagnosis, prognosis, Section was formerly classified to section 4561 of this or treatment of any patient which are main- title prior to renumbering by Pub. L. 98-24. tamed in connection with the performance of AMENDMENTS any program or activity relating to substance abuse education, prevention, training, treat- l994- Subsea (b)(2). Pub. L. .03 -446 substituted ment. rehabilitation, or research, which is, con. "Under Secretary for 73ealth" for ` Medical Direc- ducted, regulated, or directly or indirectly as- ter". slated by any department or agency of the 1992-Pub. L. .102-321 amended section generally, sub- stituting provisions relating to admission of substance United States shall, except as provided in sub - abusers to private and public hospitals and outpatient section (e) of this section, be confidential and be facilities for provisions relating to programs for goy- disclosed only` for the purposes and under the • ernment and other employees• circumstances expressly authorized under sub 1986- Subsec. (a). Pub. L. 99- 570, sim b)(1), redesig- action (b) of this section. Hated subsec. (b) as (a), struck out "similar" after "fos- tering and encouraging" in par. (1), and struck out (b) Permitted disclosure former subsec. (a) which read as follows` "The Office of (1) Consent Personnel Management shall be responsible for devel- oping and maintaining, in cooperation with the See- The content of any record referred to in sub- retary and with other Federal 'agencies and depart- section (a) of this section may be disclosed in. ments, and in accordance with the provisions of sub - accordance with the prior written consent of part F of part III of title 5, appropriate prevention, the - patient with respect to whom such record treatment, and rehabilitation programs and services is maintained but only to such extent. under for alcohol abuse and alcoholism among Federal civil- such circumstances, and for such purposes as ian employees. consistent with the purposes of this may be allowed under regulations prescribed chapter. Such agencies and departments are encour- aged to extend, to the extent feasible, these programs pursuant to subsection (g) of this section. and services to the families of alcoholic employees and (2) Method for disclosure to employees who have family members who are alco Whether or not the patient, with respect; to holies. Such policies and services shall make optimal use of existing governmental facilities, services, and whom any given record referred to in sub - skills." section (a) of this section: is maintained, gives Subsecs. (b) to 14). Pub. L. 99 -570, §6002tb)(1 }(C), redes- written consent, the content of such record Ignated subsecg. (c) and (d) as (b) and (c), respectively. may be disclosed as follows: Former subsec. (b) redesignated (a). (A) To medical personnel to the extent 1984 -Pub. L. 98-609 amended directory language of necessary' to meet a bona fide medical ether- Pub. L. 98-24, §2(b)(13). See 1983 Amendment note genet'. below' qualified personnel for the 1983 -Pub. L. 98-24, §2(b)(13), as amended by Pub. L. (B) To cl. purpose 98-509, renumbered section 4561 of this title as this sec- of conducting scientific research, manage- ton. ment audits. financial audits, or program Subsec. (b)(4). Pub. L. 98-24, §2(b)(13)(S)(i), sub- evaluation, but such personnel may not stituted "section 290ee -1 of this title" for "section identify, directly or indirectly, any 'individ 1180(b) of title 21"• aal patient in any report of such research, Subsec. (d). Pub. L. 98-24, §2(b)(13)(B)(il), substituted audit, or evaluation, or otherwise disclose "this section" for "this subchapter ", meaning sub- chapter II (§4561 et seq.) of chapter 60 of this title, patient identities in any manner. 1981 - Subsec. (b). Pub. L. 97-35, § §961., 966(d), made (0) If authorized by an appropriate order of changes In nomenclature, and substituted provisions a, court of competent jurisdiction granted • § §290dd -3 to 290ee -3 TITLE 42-THE PUBLIC HEALTH AND WELFARE Page 718 assistance for violation of section and for termination related to technical assistance to State and local agen- ); of Federal assistance on failure to comply, now incor• ties by Natrona Institute on Drug Abuse. • porated in regulation authorization of subsec. (b) of Section 290ee: 1, act July 1, 1944, ch. 373, title V, §546, this section. formerly Pub. L. 92 -255, title IV, §413, Mar. 21, 1972, 86 Subset. (b). Pub. L. 93 -282 substituted provisions re*. Stat. 84, as amended. Pub. L. 96 -181. §8(a). (b)(1), Jan. 2, specting issuance of regulations by the Secretary con- 1980. 93 Stat. 1313. 1314; Pub. L. 97-36, title IX. §973(e), cerning enforcement procedures and suspension or rev- Aug. 13, 1981. 95 Stat. 598; renumbered §525 of act July ovation of Federal support and by the Administrator 1, 1944, and amended Apr. 26, 1983, Pub. L. 98 -24, concerning applicable regulations for veterans, and for §2(b)(16)(A), 97 Stat. 182; Oct. 27, 1986, Pub. L. 99 -570, coordination of the respective regulations for former title VI, §6002(b)(2), 100 Stat. 3207-159; renumbered §546, provisions respecting judicial review. July 22, 1987. Pub. L. 100 -77, title VI, §611(2), 101 Stat. EFFECTIVE DATE OF 1992 AMENDMENT Stat. Nov. 4. 1988, Pub. L, 100 -601, title VIII, §813(4), 102 Stat. 3171; Nov. 7, 1988, Pub. L. 100 -628, title VI, §613(4), Amendment by Pub. L. 102-321 effective Oct. 1, 1992, 102 Stat. 3243; Aug; 16, 1989, Pub. L. 101 -93, §5(1)(1), 103 with provision for programs providing financial assist- Stat. 615, related to drug abuse among government and ante, see section 801(c), (d) of Pub. L. 102 -321, set out as other employees, a note ander section 236 of this title. Section 290ee -2, act July 1, 1944, ch. 3'73, title V, §547, formerly Pub: L. 92 -255, title IV, § 407, Mar. 21, 1972, . 86 EFFECTIVE. DATE OP 1976 AMENDMENT Stat. 79, as amended Pub. L. 94- 237, §6(a). Mar. 19, 1976, . Amendment by Pub. L. 94,581 effective Oct. 21, 1976, 90 Stat. 244; Pub. L. 94 -581, title I, §111(0)(2), Oct. 21, see section 211 of Pub. L. 94 -581, set out as a note under 1976, 90 Stat. 2852; renumbered §526 of act July 1, 1944, section 111 of Title 38, Veterans' Benefits. Apr. 26, 1983. Pub. L. 98-24. §2(b)(16)(B), 97 Stat. 182; re- numbered §547, July 22, 1987, Pub. L. 100 -77, title VT, REPORT OF ADMLNISTRATOR OF VETERANS' AFFAIRS TO §61112), 101 Stat. 516. related to admission of drug abus- CONGRESSIONAL COMMITTEES; PUBLICATION IN FED.. ers to private and public hospitals. ERAL REGISTER Section 290ee -3, act July 1, 1944, ch. 373, title V, §548, Section 121(b) of Pub. L. 93 282. which directed rid- formerly Pub, L. 92 -255, title IV, §408. Mar. 21, 1972, 86 ministrator of Veterans' Affairs to submit to appro. Stat. 79, as amended Pub. L. 93-282, title III, §303(a), (b), May 14, 1974, 88 Stat. 137, 138; Pub. L. 94 -237, §4(c)(5)(A), prlate committees of House of Representatives and Mar. 19, 1976, 90 Stat. 244; Pub. L. 94 -581, title I, Senate a. full report (I) on regulations (including guide- §111(c)(3). Oct. 21, 1976, 90 Stat. 2852; Pub. L. 97 -35, title lines, policies, and procedures thereunder) he had pre- IX, §973(d). Aug. 13. 1981, 95 Stat. 598; renumbered § 527 scribed pursuant to Section 821(b)(2) of Comprehensive of act July 1. 1944, and amended Apr. 26. 1983. Pub. L. Alcohol Abuse and Alcoholism Prevention, Treatment, 98 -24. §2(b)(16)(B). 97 Stat. 182; Aug. 27. 1986, Pub. L. and Rehabilitation Act of 1970 (former subsec. (b)(2) of 99-401, title I. §106(b), 100 Stat. 907; renumbered §348, this section). (2) explaining bases for any inconsistency July 22, 1987, Pub. L. 100 -77, title VI, §511(2), 101 Stat. between such regulations and regulations of Secretary 516; June 13, 1991, Pub, L. 102 -54, §13(0)(1) A)(iil), (B)(i), under section 321(b)(1) of such Act [subsec. (b)(1) of this 105 Stat. 278; related to confidentiality of patient section], (3) on extent, substance, and results of his records for drug abuse programs. See section 29005 -2 of consultations with Secretary respecting prescribing this title. and implementation of Administrator's regulations. and (4) containing such recommendations for legisla- PART E.-CHILDREN Vfil'1'f1 SERIOUS EMOTIONA1 tion and administrative actions as he determined were DISTURBANCES necessary and desirable, with Administrator to submit • report not later than sixty days after effective (late of § 290ff. Comprehensive community mental health: regulations prescribed by Secretary under such section services for children with serious emotional 321(b)(1) [subsea (b)(1) of this section]. and to publish disturbances such report in Federal Register, was characterized by section 111(0)(5) of Pub. L. 94-581 as having been super- (a) Grants to certain public entities seded by section 4134 [now 7334] of Title 38, Veterans' (1) In general Benefits. The Secretary, acting through the Director § §290dd -3 to 290ee -3. Omitted of the Center for Mental Health Services, shall CODIFICATION make grants to public entities for the purpose . of providing comprehensive community men - Sections 290dd -3 to 290ee -3 were omitted in the gen- tal health services to children with a serious eral revision of this part by Pub. L. 102 -321. emotional disturbance. Section 290dd -3, act July 1, 1944. ch. 373, title V, §544, "Public "defined formerly Pub. L. 91 -616, title III, §333, Dec. 31, 1970, 84 bi c em it y Stat. 1853, as amended Pub. L. 93 -282, title I, §122(a), For purposes of this part, the term "public May 4, 1974, 88 Stat. 131; Pub. L. 94 -581, title I. entity" means any State, any political sub- §111(c)(4), Oct. 21, 1976, 90 Stat. 2852; renumbered §523 of division of a State, and any Indian tribe or. act July 1, 1944, Apr. 26. 1983, Pub. L. 98-24, §2(b)(13). 97 tribal organization (as defined in section Stat. 181; Aug. 27, 1986, Pub. L, 99 -401, title I, § 106(a), 100 450b(b) and section 450b(c) b of title 25). Stat. 907; renumbered §544, July 22, 1987, Pub. L. 100 -17, title VI, §611(2), 101 Stat. 516; June 13, 1991, Pub. L. (b) Considerations in making grants 102 -54, §13(o)(1)(A)(ii), 105 Stat. 278, related to confiden- (1) Requirement of status as grantee tthdis tiality of patient records for alcohol abuse and alcohol- part B of subchapter XVII ' ism programs. See section 290d6 -2 of this title. Section 290ee, act July 1, 1944, oh. 373, title V; §545, The Secretary may make a grant under sub - formerly Pub. L. 92 -255, title V, §502. as added P(tb. L. Section (a) of this section to a public entity 94 -237, §12(b)(1). Mar. 19 1976, 90 Stat. 247, and amended only if Pub. L. 95 -461, §5, Oct. 14, 1978, 92 Stat. 1269; Pub. L. (A) in the case of a public entity that is ''a 96 -181, §11, Jan. 2, 1980, 93 Stat. 1315; renumbered §524 of State, the State is a grantee under section act July 1, 1944, and amended Apr. 26, 1960, Pub. L. 000x of this title; 98-24, §2(b)(15), 97 Stat. 181; renumbered §545, July 22, (B) in the case of a public entity that is 2,, 1987, Pub. L. 100 -77, title VI, §611(2), 101 Stat. 516; Nov. political subdivision of a State, the State in 4, 1988, Pub. Ij, 100 -607, title VIII, §813(3), 102 Stat. 3170; NOcr. 7, 1988, Pub. L. .100-628, title VI, §613(3), 102 Stat_ 0243; Aug. 16, 1989, Pub. L. 101 -93, § 5(b)(1), 103 Stat. 615, 'See References in Text note below. • SECTION 12 • EXHIBIT "K" FLORIDA STATUTES CHAPTER 119 • • 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate The Florida Senate 2012 Florida Statutes ! tie X Chapter 119 UBLIC OFFICERS, EMPLOYEES, AND RECORDS PUBLIC RECORDS CHAPTER 119 PUBLIC RECORDS 119.01 General state policy on public records. 119.011 Definitions. 119.021 Custodial requirements; maintenance, preservation, and retention of public records. 119.035 Officers - elect. 119.07 Inspection and copying of records; photographing public records; fees; exemptions. 119.071 General exemptions from inspection or copying of public records. 119.0711 Executive branch agency exemptions from inspection or copying of public records. 119.0712 Executive branch agency- specific exemptions from inspection or copying of public records. 119.0713 Local government agency exemptions from inspection or copying of public records. 119.0714 Court files; court records; official records. 119.084 Copyright of data processing software created by governmental agencies; sale price and licensing fee. 119.092 Registration by federal employer's registration number. 119.10 Violation of chapter; penalties. 119.105 Protection of victims of crimes or accidents. •.11 Accelerated hearing; immediate compliance. 119.12 Attorney's fees. 119.15 Legislative review of exemptions from public meeting and public records requirements. 119.01 General state policy on public records. — (1) It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency. (2)(a) Automation of public records must not erode the right of access to those records. As each agency increases its use of and dependence on electronic recordkeeping, each agency must provide reasonable public access to records electronically maintained and must ensure that exempt or confidential records are not disclosed except as otherwise permitted by law. (b) When designing or acquiring an electronic recordkeeping system, an agency must consider whether such system is capable of providing data in some common format such as, but not limited to, the American Standard Code for Information Interchange. (c) An agency may not enter into a contract for the creation or maintenance of a public records database if that contract impairs the ability of the public to inspect or copy the public records of the agency, including public records that are online or stored in an electronic recordkeeping system used by the agency. (d) Subject to the restrictions of copyright and trade secret laws and public records exemptions, agency use of proprietary software must not diminish the right of the public to inspect and copy a public record. e) Providing access to public records by remote electronic means is an additional method of access that agencies Lould strive to provide to the extent feasible. If an agency provides access to public records by remote electronic means, such access should be provided in the most cost - effective and efficient manner available to the agency providing the information. http: / /www.flsenate.gov /Laws /Statutes /2012/Chapter119 /All 1/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate (f) Each agency that maintains a public record in an electronic recordkeeping system shall provide to any person, pursuant to this chapter, a copy of any public record in that system which is not exempted by law from public disclosure. An agency must provide a copy of the record in the medium requested if the agency maintains the record o that medium, and the agency may charge a fee in accordance with this chapter. For the purpose of satisfying a blic records request, the fee to be charged by an agency if it elects to provide a copy of a public record in a medium not routinely used by the agency, or if it elects to compile information not routinely developed or maintained by the agency or that requires a substantial amount of manipulation or programming, must be in accordance with s. 119.07(4). (3) If public funds are expended by an agency in payment of dues or membership contributions for any person, corporation, foundation, trust, association, group, or other organization, all the financial, business, and membership records of that person, corporation, foundation, trust, association, group, or other organization which pertain to the public agency are public records and subject to the provisions of s. 119.07. History. —s. 1, ch. 5942, 1909; RGS 424; CGL 490; s. 1, ch. 73 -98; s. 2, ch. 75 -225; s. 2, ch. 83 -286; s. 4, ch. 86 -163; ss. 1, 5, ch. 95 -296; s. 2, ch. 2004 -335; s. 1, ch. 2005 -251. 119.011 Definitions. — As used in this chapter, the term: (1) "Actual cost of duplication" means the cost of the material and supplies used to duplicate the public record, but does not include labor cost or overhead cost associated with such duplication. (2) "Agency" means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency. 0 3)(a) "Criminal intelligence information" means information with respect to an identifiable person or group of persons collected by a criminal justice agency in an effort to anticipate, prevent, or monitor possible criminal activity. (b) "Criminal investigative information" means information with respect to an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including, but not limited to, information derived from laboratory tests, reports of investigators or informants, or any type of surveillance. (c) "Criminal intelligence information" and "criminal investigative information" shall not include: 1. The time, date, location, and nature of a reported crime. 2. The name, sex, age, and address of a person arrested or of the victim of a crime except as provided in s. 119.071(2)(h). 3. The time, date, and location of the incident and of the arrest. 4. The crime charged. 5. Documents given or required by law or agency rule to be given to the person arrested, except as provided in s. 119.071(2)(h), and, except that the court in a criminal case may order that certain information required by law or agency rule to be given to the person arrested be maintained in a confidential manner and exempt from the provisions of s. 119.07(1) until released at trial if it is found that the release of such information would: a. Be defamatory to the good name of a victim or witness or would jeopardize the safety of such victim or witness; and b. Impair the ability of a state attorney to locate or prosecute a codefendant. e . Informations and indictments except as provided in s. 905.26. (d) The word "active" shall have the following meaning: 1. Criminal intelligence information shall be considered "active" as long as it is related to intelligence gathering conducted with a reasonable, good faith belief that it will lead to detection of ongoing or reasonably anticipated http: //www.fl senate.gov / Laws /Statutes /2012/Chapter119 /AII 2/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate criminal activities. 2. Criminal investigative information shall be considered "active" as long as it is related to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the • eseeable future. In addition, criminal intelligence and criminal investigative information shall be considered "active" while such information is directly related to pending prosecutions or appeals. The word "active" shall not apply to information in cases which are barred from prosecution under the provisions of s. 775.15 or other statute of limitation. (4) "Criminal justice agency" means: (a) Any law enforcement agency, court, or prosecutor; (b) Any other agency charged by law with criminal law enforcement duties; (c) Any agency having custody of criminal intelligence information or criminal investigative information for the purpose of assisting such law enforcement agencies in the conduct of active criminal investigation or prosecution or for the purpose of litigating civil actions under the Racketeer Influenced and Corrupt Organization Act, during the time that such agencies are in possession of criminal intelligence information or criminal investigative information pursuant to their criminal law enforcement duties; or (d) The Department of Corrections. (5) "Custodian of public records" means the elected or appointed state, county, or municipal officer charged with the responsibility of maintaining the office having public records, or his or her designee. (6) "Data processing software" means the programs and routines used to employ and control the capabilities of data processing hardware, including, but not limited to, operating systems, compilers, assemblers, utilities, library routines, maintenance routines, applications, and computer networking programs. 0 7) "Duplicated copies" means new copies produced by duplicating, as defined in s. 283.30. (8) "Exemption" means a provision of general law which provides that a specified record or meeting, or portion thereof, is not subject to the access requirements of s. 119.07(1), s. 286.011, or s. 24, Art. I of the State Constitution. (9) "Information technology resources" means data processing hardware and software and services, communications, supplies, personnel, facility resources, maintenance, and training. (10) "Paratransit" has the same meaning as provided in s. 427.011. (11) "Proprietary software" means data processing software that is protected by copyright or trade secret laws. (12) "Public records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. (13) "Redact" means to conceal from a copy of an original public record, or to conceal from an electronic image that is available for public viewing, that portion of the record containing exempt or confidential information. (14) "Sensitive," for purposes of defining agency - produced software that is sensitive, means only those portions of data processing software, including the specifications and documentation, which are used to: (a) Collect, process, store, and retrieve information that is exempt from s. 119.07(1); (b) Collect, process, store, and retrieve financial management information of the agency, such as payroll and accounting records; or (c) Control and direct access authorizations and security measures for automated systems. History. —s. 1, ch. 67 -125; s. 2, ch. 73 -98; s. 3, ch. 75 -225; ss. 1, 2, ch. 79 -187; s. 8, ch. 85 -53; s. 1, ch. 88 -188; s. 5, ch. 93 -404; s. 5, ch. 93 -405; s. 5, 95 -207; s. 6, ch. 95 -296; s. 10, ch. 95 -398; s. 40, di. 96 -406; s. 2, ch. 97 -90; s. 3, ch. 2004 -335; s. 43, di. 2005 -251; s. 1, ch. 2008 -57. 119.021 Custodial requirements; maintenance, preservation, and retention of public records. — (1) Public records shall be maintained and preserved as follows: http://www.flsenate.gov/Laws/Statutes/2012/Chapter119/All 3/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate (a) All public records should be kept in the buildings in which they are ordinarily used. (b) Insofar as practicable, a custodian of public records of vital, permanent, or archival records shall keep them in fireproof and waterproof safes, vaults, or rooms fitted with noncombustible materials and in such arrangement as to • easily accessible for convenient use. c)1. Record books should be copied or repaired, renovated, or rebound if worn, mutilated, damaged, or difficult to read. 2. Whenever any state, county, or municipal records are in need of repair, restoration, or rebinding, the head of the concerned state agency, department, board, or commission; the board of county commissioners of such county; or the governing body of such municipality may authorize that such records be removed from the building or office in which such records are ordinarily kept for the length of time required to repair, restore, or rebind them. 3. Any public official who causes a record book to be copied shall attest and certify under oath that the copy is an accurate copy of the original book. The copy shall then have the force and effect of the original. (2)(a) The Division of Library and Information Services of the Department of State shall adopt rules to establish retention schedules and a disposal process for public records. (b) Each agency shall comply with the rules establishing retention schedules and disposal processes for public records which are adopted by the records and information management program of the division. (c) . Each public official shall systematically dispose of records no longer needed, subject to the consent of the records and information management program of the division in accordance with s. 257.36. (d) The division may ascertain the condition of public records and shall give advice and assistance to public officials to solve problems related to the preservation, creation, filing, and public accessibility of public records in their custody. Public officials shall assist the division by preparing an inclusive inventory of categories of public records in their custody. The division shall establish a time period for the retention or disposal of each series of records. Upon the - mpletion of the inventory and schedule, the division shall, subject to the availability of necessary space, staff, and ip er facilities for such purposes, make space available in its records center for the filing of semicurrent records so scheduled and in its archives for noncurrent records of permanent value, and shall render such other assistance as needed, including the microfilming of records so scheduled. (3) Agency orders that comprise final agency action and that must be indexed or listed pursuant to s. 120.53 have continuing legal significance; therefore, notwithstanding any other provision of this chapter or any provision of chapter 257, each agency shall permanently maintain records of such orders pursuant to the applicable rules of the Department of State. (4)(a) Whoever has custody of any public records shall deliver, at the expiration of his or her term of office, to his or her successor or, if there be none, to the records and information management program of the Division of Library and Information Services of the Department of State, all public records kept or received by him or her in the transaction of official business. (b) Whoever is entitled to custody of public records shall demand them from any person having illegal possession of them, who must forthwith deliver the same to him or her. Any person unlawfully possessing public records must within 10 days deliver such records to the lawful custodian of public records unless just cause exists for failing to deliver such records. History. —s. 2, ch. 67 -125; s. 3, ch. 83 -286; s. 753, ch. 95 -147; s. 5, ch. 2004 -335. 119.035 Officers- elect.— (1) It is the policy of this state that the provisions of this chapter apply to officers -elect upon their election to public . ce. Such officers -elect shall adopt and implement reasonable measures to ensure compliance with the public ecords obligations set forth in this chapter. (2) Public records of an officer -elect shall be maintained in accordance with the policies and procedures of the public office to which the officer has been elected. http: //www.flsenate.gov /laws /Statutes /2012/Chapter119 /AII 4/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate (3) If an officer - elect, individually or as part of a transition process, creates or uses an online or electronic communication or recordkeeping system, all public records maintained on such system shall be preserved so as not to impair the ability of the public to inspect or copy such public records. A1 4) Upon taking the oath of office, the officer -elect shall, as soon as practicable, deliver to the person or persons ponsible for records and information management in such office all public records kept or received in the transaction of official business during the period following election to public office. (5) As used in this section, the term "officer- elect" means the Governor, the Lieutenant Governor, the Attorney General, the Chief Financial Officer, and the Commissioner of Agriculture. History. —s. 1, ch. 2012 -25. 119.07 Inspection and copying of records; photographing public records; fees; exemptions. — (1)(a) Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records. (b) A custodian of public records or a person having custody of public records may designate another officer or employee of the agency to permit the inspection and copying of public records, but must disclose the identity of the designee to the person requesting to inspect or copy public records. (c) A custodian of public records and his or her designee must acknowledge requests to inspect or copy records promptly and respond to such requests in good faith. A good faith response includes making reasonable efforts to determine from other officers or employees within the agency whether such a record exists and, if so, the location at which the record can be accessed. (d) A person who has custody of a public record who asserts that an exemption applies to a part of such record shall redact that portion of the record to which an exemption has been asserted and validly applies, and such person 0 11 produce the remainder of such record for inspection and copying. (e) If the person who has custody of a public record contends that all or part of the record is exempt from inspection and copying, he or she shall state the basis of the exemption that he or she contends is applicable to the record, including the statutory citation to an exemption created or afforded by statute. (f) If requested by the person seeking to inspect or copy the record, the custodian of public records shall state in writing and with particularity the reasons for the conclusion that the record is exempt or confidential. (g) In any civil action in which an exemption to this section is asserted, if the exemption is alleged to exist under or by virtue of s. 119.071(1)(d) or (f), (2)(d),(e), or (f), or (4)(c), the public record or part thereof in question shall be submitted to the court for an inspection in camera. If an exemption is alleged to exist under or by virtue of s. 119.071(2) (c), an inspection in camera is discretionary with the court. If the court finds that the asserted exemption is not applicable, it shall order the public record or part thereof in question to be immediately produced for inspection or copying as requested by the person seeking such access. (h) Even if an assertion is made by the custodian of public records that a requested record is not a public record subject to public inspection or copying under this subsection, the requested record shall, nevertheless, not be disposed of for a period of 30 days after the date on which a written request to inspect or copy the record was served on or otherwise made to the custodian of public records by the person seeking access to the record. If a civil action is instituted within the 30 -day period to enforce the provisions of this section with respect to the requested record, the custodian of public records may not dispose of the record except by order of a court of competent jurisdiction after notice to all affected parties. •i) The absence of a civil action instituted for the purpose stated in paragraph (g) does not relieve the custodian of public records of the duty to maintain the record as a public record if the record is in fact a public record subject to public inspection and copying under this subsection and does not otherwise excuse or exonerate the custodian of public records from any unauthorized or unlawful disposition of such record. http: / /www.fl senate gov/Laws/Statutes/2012/Chapter119/All 5/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate (2)(a) As an additional means of inspecting or copying public records, a custodian of public records may provide access to public records by remote electronic means, provided exempt or confidential information is not disclosed. (b) The custodian of public records shall provide safeguards to protect the contents of public records from lit authorized remote electronic access or alteration and to prevent the disclosure or modification of those portions of blic records which are exempt or confidential from subsection (1) or s. 24, Art. I of the State Constitution. (c) Unless otherwise required by law, the custodian of public records may charge a fee for remote electronic access, granted under a contractual arrangement with a user, which fee may include the direct and indirect costs of providing such access. Fees for remote electronic access provided to the general public shall be in accordance with the provisions of this section. (3)(a) Any person shall have the right of access to public records for the purpose of making photographs of the record while such record is in the possession, custody, and control of the custodian of public records. (b) This subsection applies to the making of photographs in the conventional sense by use of a camera device to capture images of public records but excludes the duplication of microfilm in the possession of the clerk of the circuit court where a copy of the microfilm may be made available by the clerk. (c) Photographing public records shall be done under the supervision of the custodian of public records, who may adopt and enforce reasonable rules governing the photographing of such records. (d) Photographing of public records shall be done in the room where the public records are kept. If, in the judgment of the custodian of public records, this is impossible or impracticable, photographing shall be done in another room or place, as nearly adjacent as possible to the room where the public records are kept, to be determined by the custodian of public records. Where provision of another room or place for photographing is required, the expense of providing the same shall be paid by the person desiring to photograph the public record pursuant to paragraph (4)(e). (4) The custodian of public records shall furnish a copy or a certified copy of the record upon payment of the fee scribed by law. If a fee is not prescribed by law, the following fees are authorized: (a)1. Up to 15 cents per one -sided copy for duplicated copies of not more than 14 inches by 8 2. No more than an additional 5 cents for each two -sided copy; and 3. For all other copies, the actual cost of duplication of the public record. (b) The charge for copies of county maps or aerial photographs supplied by county constitutional officers may also include a reasonable charge for the labor and overhead associated with their duplication. (c) An agency may charge up to $1 per copy for a certified copy of a public record. (d) If the nature or volume of public records requested to be inspected or copied pursuant to this subsection is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both, the agency may charge, in addition to the actual cost of duplication, a special service charge, which shall be reasonable and shall be based on the cost incurred for such extensive use of information technology resources or the labor cost of the personnel providing the service that is actually incurred by the agency or attributable to the agency for the clerical and supervisory assistance required, or both. (e)1. Where provision of another room or place is necessary to photograph public records, the expense of providing the same shall be paid by the person desiring to photograph the public records. 2. The custodian of public records may charge the person making the photographs for supervision services at a rate of compensation to be agreed upon by the person desiring to make the photographs and the custodian of public records. If they fail to agree as to the appropriate charge, the charge shall be determined by the custodian of public records. 0 5) When ballots are produced under this section for inspection or examination, no persons other than the supervisor of elections or the supervisor's employees shall touch the ballots. If the ballots are being examined before the end of the contest period in s. 102.168, the supervisor of elections shall make a reasonable effort to notify all candidates by telephone or otherwise of the time and place of the inspection or examination. All such candidates, or http: / /www.fl senate.gov /Laws /Statutes /2012/C hapter 119/Al l 6/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate their representatives, shall be allowed to be present during the inspection or examination. (6) An exemption contained in this chapter or in any other general or special law shall not limit the access of the Auditor General, the Office of Program Policy Analysis and Government Accountability, or any state, county, Oru cipal, university, board of community college, school district, or special district internal auditor to public records en such person states in writing that such records are needed for a properly authorized audit, examination, or investigation. Such person shall maintain the exempt or confidential status of that public record and shall be subject to the same penalties as the custodian of that record for public disclosure of such record. (7) An exemption from this section does not imply an exemption from s. 286.011. The exemption from s. 286.011 must be expressly provided. (8) The provisions of this section are not intended to expand or limit the provisions of Rule 3.220, Florida Rules of Criminal Procedure, regarding the right and extent of discovery by the state or by a defendant in a criminal prosecution or in collateral postconviction proceedings. This section may not be used by any inmate as the basis for failing to timely litigate any postconviction action. History. -s. 7, ch. 67 -125; s. 4, ch. 75 -225; s. 2, ch. 77 -60; s. 2, ch. 77 -75; s. 2, ch. 77 -94; s. 2, ch. 77 -156; s. 2, ch. 78 -81; ss. 2, 4, 6, ch. 79 -187; s. 2, ch. 80 -273; s. 1, ch. 81 -245; s. 1, ch. 82 -95; s. 36, ch. 82 -243; s. 6, ch. 83 -215; s. 2, ch. 83 -269; s. 1, ch. 83 -286; s. 5, ch. 84 -298; s. 1, ch. 85 -18; s. 1, ch. 8545; s. 1, ch. 85 -73; s. 1, ch. 85 -86; s. 7, ch. 85 -152; s. 1, ch. 85 -177; s. 4, ch. 85 -301; s. 2, ch. 86 -11; s. 1, ch. 86 -21; s. 1, ch. 86 -109; s. 2, ch. 87 -399; s. 2, ch. 88 -188; s. 1, ch. 88 -384; s. 1, ch. 89 -29; s. 7, ch. 89 -55; s. 1, di. 89 -80; s. 1, ch. 89 -275; s. 2, ch. 89 -283; s. 2, di. 89 -350; s. 1, ch. 89 -531; s. 1, ch. 90-43; s. 63, ch. 90 -136; s. 2, ch. 90 -196; s. 4, ch. 90 -211; s. 24, ch. 90 -306; ss. 22, 26, ch. 90 -344; s. 116, ch. 90 -360; s. 78, ch. 91-45; s. 11, ch. 91 -57; s. 1, ch. 91 -71; s. 1, ch. 91 -96; s. 1, ch. 91 -130; s. 1, ch. 91 -149; s. 1, ch. 91 -219; s. 1, ch. 91 -288; ss. 43, 45, ch. 92 -58; s. 90, ch. 92 -152; s. 59, ch. 92 -289; s. 217, ch. 92 -303; s. 1, ch. 93 -87; s. 2, ch. 93 -232; s. 3, ch. 93 -404; s. 4, ch. 93 -405; s. 4, ch. 94-73; s. 1, ch. 94 -128; s. 3, ch. 94 -130; s. 67, ch. 94 -164; s. 1, ch. 94 -176; s. 1419, ch. 95 -147; ss. 1, 3, ch. 95 -170; s. 4, ch. 95 -207; s. 1, ch. 95 -320; ss. 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 14, 15, 16, 18, 19, 20, 22, 23, 24, 25, 26, 29, 30, 31, 32, 33, 34, 35, 36, ch. 95 -398; s. 1, di. 95 -399; s. 121, ch. 95418; s. 3, da. 96 -178; s. 1, ch. 96 -230; s. 5, ch. 96 -268; s. 4, ch. 96 -290; s. 41, 96 -406; s. 18, ch. 96410; s. 1, ch. 97 -185; s. 1, ch. 98 -9; s. 7, ch. 98 -137; s. 1, ch. 98 -255; s. 1, ch. 98 -259; s. 128, ch. 98403; s. 2, ch. 99 -201; s. 27, •2000 -164; s. 54, ch. 2000 -349; s. 1, ch. 2001 -87; s. 1, ch. 2001 -108; s. 1, ch. 2001 -249; s. 29, ch. 2001 -261; s. 33, ch. 2001 -266; s. 1, ch. 2001 -364; s. 1, ch. 2002 -67; ss. 1, 3, ch. 2002 -257; s. 2, ch. 2002 -391; s. 11, ch. 2003 -1; s. 1, ch. 2003 -100; ss. 1, 2, ch. 2003 -110; s. 1, ch. 2003 -137; ss. 1, 2, di. 2003- 157; ss. 1, 2, ch. 2004 -9; ss. 1, 2, ch. 2004 -32; ss. 1, 2, ch. 2004 -62; ss. 1, 3, ch. 2004 -95; s. 7, ch. 2004 -335; ss. 2, 3, 4, 5, 6, 7, 8, 9, 11, 12,13,14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 38, ch. 2005 -251; s. 74, ch. 2005 -277; s. 1, ch. 2007 -39; ss. 2, 4, ch. 2007 -251. 119.071 General exemptions from inspection or copying of public records. - (1) AGENCY ADMINISTRATION. - (a) Examination questions and answer sheets of examinations administered by a governmental agency for the purpose of licensure, certification, or employment are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. A person who has taken such an examination has the right to review his or her own completed examination. (b)1. For purposes of this paragraph, "competitive solicitation" means the process of requesting and receiving sealed bids, proposals, or replies in accordance with the terms of a competitive process, regardless of the method of procurement. 2. Sealed bids, proposals, or replies received by an agency pursuant to a competitive solicitation are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until such time as the agency provides notice of an intended decision or until 30 days after opening the bids, proposals, or final replies, whichever is earlier. 3. If an agency rejects all bids, proposals, or replies submitted in response to a competitive solicitation and the agency concurrently provides notice of its intent to reissue the competitive solicitation, the rejected bids, proposals, or *lies remain exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until such time as the agency provides notice of an intended decision concerning the reissued competitive solicitation or until the agency withdraws the reissued competitive solicitation. A bid, proposal, or reply is not exempt for longer than 12 months after the initial agency notice rejecting all bids, proposals, or replies. http: //www.flsenate.gov /Laws /Statutes /2012/Chapter119 /All 7/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate 4. This paragraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2016, unless reviewed and saved from repeal through reenactment by the Legislature. (c) Any financial statement that an agency requires a prospective bidder to submit in order to prequalify for 'ding or for responding to a proposal for a road or any other public works project is exempt from s. 119.07(1) and s. a), Art. I of the State Constitution. (d)1. A public record that was prepared by an agency attorney (including an attorney employed or retained by the agency or employed or retained by another public officer or agency to protect or represent the interests of the agency having custody of the record) or prepared at the attorney's express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and that was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or that was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the conclusion of the litigation or adversarial administrative proceedings. For purposes of capital collateral litigation as set forth in s. 27.7001, the Attorney General's office is entitled to claim this exemption for those public records prepared for direct appeal as well as for all capital collateral litigation after direct appeal until execution of sentence or imposition of a life sentence. 2. This exemption is not waived by the release of such public record to another public employee or officer of the same agency or any person consulted by the agency attorney. When asserting the right to withhold a public record pursuant to this paragraph, the agency shall identify the potential parties to any such criminal or civil litigation or adversarial administrative proceedings. If a court finds that the document or other record has been improperly withheld under this paragraph, the party seeking access to such document or record shall be awarded reasonable attorney's fees and costs in addition to any other remedy ordered by the court. (e) Any videotape or video signal that, under an agreement with an agency, is produced, made, or received by, or n the custody of, a federally licensed radio or television station or its agent is exempt from s. 119.07(1). W f) Data processing software obtained by an agency under a licensing agreement that prohibits its disclosure and which software is a trade secret, as defined in s. 812.081, and agency- produced data processing software that is sensitive are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. The designation of agency- produced software as sensitive shall not prohibit an agency head from sharing or exchanging such software with another public agency. 1 (2) AGENCY INVESTIGATIONS. — (a) All criminal intelligence and criminal investigative information received by a criminal justice agency prior to January 25, 1979, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. (b) Whenever criminal intelligence information or criminal investigative information held by a non - Florida criminal justice agency is available to a Florida criminal justice agency only on a confidential or similarly restricted basis, the Florida criminal justice agency may obtain and use such information in accordance with the conditions imposed by the providing agency. (c)1. Active criminal intelligence information and active criminal investigative information are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. 2.a. A request made by a law enforcement agency to inspect or copy a public record that is in the custody of another agency and the custodian's response to the request, and any information that would identify whether a law enforcement agency has requested or received that public record are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution, during the period in which the information constitutes active criminal intelligence information or active criminal investigative information. 410 .). The law enforcement agency that made the request to inspect or copy a public record shall give notice to the custodial agency when the criminal intelligence information or criminal investigative information is no longer active so that the request made by the law enforcement agency, the custodian's response to the request, and information that would identify whether the law enforcement agency had requested or received that public record are available to the http: //www.flsenate.gov /Laws /Statutes /2012/Chapter119 /All 8/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate public. c. This exemption is remedial in nature, and it is the intent of the Legislature that the exemption be applied to requests for information received before, on, or after the effective date of this paragraph. aid) Any information revealing surveillance techniques or procedures or personnel is exempt from s. 119.07(1) and 4(a), Art. I of the State Constitution. Any comprehensive inventory of state and local law enforcement resources compiled pursuant to part I, chapter 23, and any comprehensive policies or plans compiled by a criminal justice agency pertaining to the mobilization, deployment, or tactical operations involved in responding to an emergency, as defined in s. 252.34, are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution and unavailable for inspection, except by personnel authorized by a state or local law enforcement agency, the office of the Governor, the Department of Legal Affairs, the Department of Law Enforcement, or the Division of Emergency Management as having an official need for access to the inventory or comprehensive policies or plans. (e) Any information revealing the substance of a confession of a person arrested is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution, until such time as the criminal case is finally determined by adjudication, dismissal, or other final disposition. (f) Any information revealing the identity of a confidential informant or a confidential source is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. (g)1.a. All complaints and other records in the custody of any agency which relate to a complaint of discrimination relating to race, color, religion, sex, national origin, age, handicap, or marital status in connection with hiring practices, position classifications, salary, benefits, discipline, discharge, employee performance, evaluation, or other related activities are exempt from s. 1 119.07 and s. 24 a Art. I of the State Constitution until a finding is made relating 119.07(1) () g g to probable cause, the investigation of the complaint becomes inactive, or the complaint or other record is made part of the official record of any hearing or court proceeding. This provision shall not affect any function or activity of the Florida Commission on Human Relations. iii Any state or federal agency that is authorized to have access to such complaints or records by any provision of law shall be granted such access in the furtherance of such agency's statutory duties. 2. When the alleged victim chooses not to file a complaint and requests that records of the complaint remain confidential, all records relating to an allegation of employment discrimination are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. 3. This paragraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2013, unless reviewed and saved from repeal through reenactment by the Legislature. (h)1. The following criminal intelligence information or criminal investigative information is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution: a. Any information, including the photograph, name, address, or other fact, which reveals the identity of the victim of the crime of child abuse as defined by chapter 827. b. Any information which may reveal the identity of a person who is a victim of any sexual offense, including a sexual offense proscribed in chapter 794, chapter 796, chapter 800, chapter 827, or chapter 847. c. A photograph, videotape, or image of any part of the body of the victim of a sexual offense prohibited under chapter 794, chapter 796, chapter 800, s. 810.145, chapter 827, or chapter 847, regardless of whether the photograph, videotape, or image identifies the victim. 2. Criminal investigative information and criminal intelligence information made confidential and exempt under this paragraph may be disclosed by a law enforcement agency: a. In the furtherance of its official duties and responsibilities. 0 . For print, publication, or broadcast if the law enforcement agency determines that such release would assist in locating or identifying a person that such agency believes to be missing or endangered. The information provided should be limited to that needed to identify or locate the victim and not include the sexual nature of the offense committed against the person. http: / /www.fl senate.gov/Laws/Statutes/2012/Chapter119/All 9/25 1 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate c. To another governmental agency in the furtherance of its official duties and responsibilities. 3. This exemption applies to such confidential and exempt criminal intelligence information or criminal investigative information held by a law enforcement agency before, on, or after the effective date of the exemption. 1 This paragraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15, and shall d repealed on October 2, 2016, unless reviewed and saved from repeal through reenactment by the Legislature. (i) Any criminal intelligence information or criminal investigative information that reveals the personal assets of the victim of a crime, other than property stolen or destroyed during the commission of the crime, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. (j)1. Any document that reveals the identity, home or employment telephone number, home or employment address, or personal assets of the victim of a crime and identifies that person as the victim of a crime, which document is received by any agency that regularly receives information from or concerning the victims of crime, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. Any information not otherwise held confidential or exempt from s. 119.07(1) which reveals the home or employment telephone number, home or employment address, or personal assets of a person who has been the victim of sexual battery, aggravated child abuse, aggravated stalking, harassment, aggravated battery, or domestic violence is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution, upon written request by the victim, which must include official verification that an applicable crime has occurred. Such information shall cease to be exempt 5 years after the receipt of the written request. Any state or federal agency that is authorized to have access to such documents by any provision of law shall be granted such access in the furtherance of such agency's statutory duties, notwithstanding this section. 2.a. Any information in a videotaped statement of a minor who is alleged to be or who is a victim of sexual battery, lewd acts, or other sexual misconduct proscribed in chapter 800 or in s. 794.011, s. 827.071, s. 847.012, s. 847.0125, s. 847.013, s. 847.0133, or s. 847.0145, which reveals that minor's identity, including, but not limited to, the or's face; the minor's home, school, church, or employment telephone number; the minor's home, school, church, e address; the name of the minor's school, church, or place of employment; or the personal assets of the minor; and which identifies that minor as the victim of a crime described in this subparagraph, held by a law enforcement agency, is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. Any governmental agency that is authorized to have access to such statements by any provision of law shall be granted such access in the furtherance of the agency's statutory duties, notwithstanding the provisions of this section. b. A public employee or officer who has access to a videotaped statement of a minor who is alleged to be or who is a victim of sexual battery, lewd acts, or other sexual misconduct proscribed in chapter 800 or in s. 794.011, s. 827.071, s. 847.012, s. 847.0125, s. 847.013, s. 847.0133, or s. 847.0145 may not willfully and knowingly disclose videotaped information that reveals the minor's identity to a person who is not assisting in the investigation or prosecution of the alleged offense or to any person other than the defendant, the defendant's attorney, or a person specified in an order entered by the court having jurisdiction of the alleged offense. A person who violates this provision commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (3) SECURITY.— (a)1. As used in this paragraph, the term "security system plan" includes all: a. Records, information, photographs, audio and visual presentations, schematic diagrams, surveys, recommendations, or consultations or portions thereof relating directly to the physical security of the facility or revealing security systems; b. Threat assessments conducted by any agency or any private entity; c. Threat response plans; 1110 .1. Emergency evacuation plans; e. Sheltering arrangements; or f. Manuals for security personnel, emergency equipment, or security training. 2. A security system plan or portion thereof for: http: //www.flsenate.gov/ Laws /Statutes /2012/Chapter119 /All 10/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate a. Any property owned by or leased to the state or any of its political subdivisions; or b. Any privately owned or leased property b d by an agency is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This mption is remedial in nature, and it is the intent of the Legislature that this exemption apply to security system plans held by an agency before, on, or after the effective date of this paragraph. 3. Information made confidential and exempt by this paragraph may be disclosed by the custodian of public records to: a. The property owner or leaseholder; or b. Another state or federal agency to prevent, detect, guard against, respond to, investigate, or manage the consequences of any attempted or actual act of terrorism, or to prosecute those persons who are responsible for such attempts or acts. (b)1. Building plans, blueprints, schematic drawings, and diagrams, including draft, preliminary, and final formats, which depict the internal layout and structural elements of a building, arena, stadium, water treatment facility, or other structure owned or operated by an agency are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. 2. This exemption applies to building plans, blueprints, schematic drawings, and diagrams, including draft, preliminary, and final formats, which depict the internal layout and structural elements of a building, arena, stadium, water treatment facility, or other structure owned or operated by an agency before, on, or after the effective date of this act. 3. Information made exempt by this paragraph may be disclosed: a. To another governmental entity if disclosure is necessary for the receiving entity to perform its duties and p o n s ib i 1 i ti e s ; b. To a licensed architect, engineer, or contractor who is performing work on or related to the building, arena, stadium, water treatment facility, or other structure owned or operated by an agency; or c. Upon a showing of good cause before a court of competent jurisdiction. 4. The entities or persons receiving such information shall maintain the exempt status of the information. (c)1. Building plans, blueprints, schematic drawings, and diagrams, including draft, preliminary, and final formats, which depict the internal layout or structural elements of an attractions and recreation facility, entertainment or resort complex, industrial complex, retail and service development, office development, or hotel or motel development, which records are held by an agency are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. 2. This exemption applies to any such records held by an agency before, on, or after the effective date of this act. 3. Information made exempt by this paragraph may be disclosed to another governmental entity if disclosure is necessary for the receiving entity to perform its duties and responsibilities; to the owner or owners of the structure in question or the owner's legal representative; or upon a showing of good cause before a court of competent jurisdiction. 4. This paragraph does not apply to comprehensive plans or site plans, or amendments thereto, which are submitted for approval or which have been approved under local land development regulations, local zoning regulations, or development -of- regional- impact review. 5. As used in this paragraph, the term: � a. "Attractions and recreation facility" means any sports, entertainment, amusement, or recreation facility, cluding, but not limited to, a sports arena, stadium, racetrack, tourist attraction, amusement park, or pari - mutuel facility that: (I) For single- performance facilities: http: / /www.flsenate.gov /Laws /Statutes /2012/Chapter119 /All 11/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate (A) Provides single- performance facilities; or (B) Provides more than 10,000 permanent seats for spectators. (II) For serial- performance facilities: fp: Provides parking spaces for more than 1,000 motor vehicles; or ) Provides more than 4,000 permanent seats for spectators. b. "Entertainment or resort complex" means a theme park comprised of at least 25 acres of land with permanent exhibitions and a variety of recreational activities, which has at least 1 million visitors annually who pay admission fees thereto, together with any lodging, dining, and recreational facilities located adjacent to, contiguous to, or in close proximity to the theme park, as long as the owners or operators of the theme park, or a parent or related company or subsidiary thereof, has an equity interest in the lodging, dining, or recreational facilities or is in privity therewith. Close proximity includes an area within a 5 -mile radius of the theme park complex. c. "Industrial complex" means any industrial, manufacturing, processing, distribution, warehousing, or wholesale facility or plant, as well as accessory uses and structures, under common ownership that: (I) Provides onsite parking for more than 250 motor vehicles; (II) Encompasses 500,000 square feet or more of gross floor area; or (III) Occupies a site of 100 acres or more, but excluding wholesale facilities or plants that primarily serve or deal onsite with the general public. d. "Retail and service development" means any retail, service, or wholesale business establishment or group of establishments which deals primarily with the general public onsite and is operated under one common property ownership, development plan, or management that: (I) Encompasses more than 400,000 square feet of gross floor area; or (II) Provides parking spaces for more than 2,500 motor vehicles. "Office development" means any office building or park operated under common ownership, development ii n, or management that encompasses 300,000 or more square feet of gross floor area. f. "Hotel or motel development" means any hotel or motel development that accommodates 350 or more units. (4) AGENCY PERSONNEL INFORMATION. — (a) The social security numbers of all current and former agency employees which numbers are held by the employing agency are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This paragraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2014, unless reviewed and saved from repeal through reenactment by the Legislature. (b)1. Medical information pertaining to a prospective, current, or former officer or employee of an agency which, if disclosed, would identify that officer or employee is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. However, such information may be disclosed if the person to whom the information pertains or the person's legal representative provides written permission or pursuant to court order. 2.a. Personal identifying information of a dependent child of a current or former officer or employee of an agency, which dependent child is insured by an agency group insurance plan, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. For purposes of this exemption, "dependent child" has the same meaning as in s. 409.2554. b. This exemption is remedial in nature and applies to personal identifying information held by an agency before, on, or after the effective date of this exemption. c. This subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2014, unless reviewed and saved from repeal through reenactment by the Legislature. ( c) Any information revealing undercover personnel of any criminal justice agency is exempt from s. 119.07(1) and W 4(a), Art. I of the State Constitution. (d)1. For purposes of this paragraph, the term "telephone numbers" includes home telephone numbers, personal cellular telephone numbers, personal pager telephone numbers, and telephone numbers associated with personal communications devices. http: / /www.flsenate.gov /Laws /Statutes /2012/Chapter119 /AII 12/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate 2.a. The home addresses, telephone numbers, social security numbers, dates of birth, and photographs of active or former sworn or civilian law enforcement personnel, including correctional and correctional probation officers, personnel of the Department of Children and Family Services whose duties include the investigation of abuse, neglect, loitation, fraud, theft, or other criminal activities, personnel of the Department of Health whose duties are to port the investigation of child abuse or neglect, and personnel of the Department of Revenue or local governments whose responsibilities include revenue collection and enforcement or child support enforcement; the home addresses, telephone numbers, social security numbers, photographs, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from s. 119.07(1). b. The home addresses, telephone numbers, dates of birth, and photographs of firefighters certified in compliance with s. 633.35; the home addresses, telephone numbers, photographs, dates of birth, and places of employment of the spouses and children of such firefighters; and the names and locations of schools and day care facilities attended by the children of such firefighters are exempt from s. 119.07(1). c. The home addresses, dates of birth, and telephone numbers of current or former justices of the Supreme Court, district court of appeal judges, circuit court judges, and county court judges; the home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of current or former justices and judges; and the names and locations of schools and day care facilities attended by the children of current or former justices and judges are exempt from s. 119.07(1). d. The home addresses, telephone numbers, social security numbers, dates of birth, and photographs of current or former state attorneys, assistant state attorneys, statewide prosecutors, or assistant statewide prosecutors; the home addresses, telephone numbers, social security numbers, photographs, dates of birth, and places of employment of the spouses and children of current or former state attorneys, assistant state attorneys, statewide prosecutors, or assistant tewide prosecutors; and the names and locations of schools and day care facilities attended by the children of rent or former state attorneys, assistant state attorneys, statewide prosecutors, or assistant statewide prosecutors are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. e. The home addresses, dates of birth, and telephone numbers of general magistrates, special magistrates, judges of compensation claims, administrative law judges of the Division of Administrative Hearings, and child support enforcement hearing officers; the home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of general magistrates, special magistrates, judges of compensation claims, administrative law judges of the Division of Administrative Hearings, and child support enforcement hearing officers; and the names and locations of schools and day care facilities attended by the children of general magistrates, special magistrates, judges of compensation claims, administrative law judges of the Division of Administrative Hearings, and child support enforcement hearing officers are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution if the general magistrate, special magistrate, judge of compensation claims, administrative law judge of the Division of Administrative Hearings, or child support hearing officer provides a written statement that the general magistrate, special magistrate, judge of compensation claims, administrative law judge of the Division of Administrative Hearings, or child support hearing officer has made reasonable efforts to protect such information from being accessible through other means available to the public. f. The home addresses, telephone numbers, dates of birth, and photographs of current or former human resource, labor relations, or employee relations directors, assistant directors, managers, or assistant managers of any local government agency or water management district whose duties include hiring and firing employees, labor contract do, egotiation, administration, or other personnel- related duties; the names, home addresses, telephone numbers, dates irth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. g. The home addresses, telephone numbers, dates of birth, and photographs of current or former code http://www.flsenate.gov/Laws/Statutes/2012/Chapter119/All 13/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate enforcement officers; the names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. 't. The home addresses, telephone numbers, places of employment, dates of birth, and photographs of current or mer guardians ad litem, as defined in s. 39.820; the names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such persons; and the names and locations of schools and day care facilities attended by the children of such persons are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution, if the guardian ad litem provides a written statement that the guardian ad litem has made reasonable efforts to protect such information from being accessible through other means available to the public. i. The home addresses, telephone numbers, dates of birth, and photographs of current or former juvenile probation officers, juvenile probation supervisors, detention superintendents, assistant detention superintendents, juvenile justice detention officers I and II, juvenile justice detention officer supervisors, juvenile justice residential officers, juvenile justice residential officer supervisors I and II, juvenile justice counselors, juvenile justice counselor supervisors, human services counselor administrators, senior human services counselor administrators, rehabilitation therapists, and social services counselors of the Department of Juvenile Justice; the names, home addresses, telephone numbers, dates of birth, and places of employment of spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. j. The home addresses, telephone numbers, dates of birth, and photographs of current or former public defenders, assistant public defenders, criminal conflict and civil regional counsel, and assistant criminal conflict and civil regional counsel; the home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such defenders or counsel; and the names and locations of schools and day care facilities attended by the dren of such defenders or counsel are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. W.. The home addresses, telephone numbers, and photographs of current or former investigators or inspectors of the Department of Business and Professional Regulation; the names, home addresses, telephone numbers, and places of employment of the spouses and children of such current or former investigators and inspectors; and the names and locations of schools and day care facilities attended by the children of such current or former investigators and inspectors are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution if the investigator or inspector has made reasonable efforts to protect such information from being accessible through other means available to the public. This sub - subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2017, unless reviewed and saved from repeal through reenactment by the Legislature. 1. The home addresses and telephone numbers of county tax collectors; the names, home addresses, telephone numbers, and places of employment of the spouses and children of such tax collectors; and the names and locations of schools and day care facilities attended by the children of such tax collectors are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution if the county tax collector has made reasonable efforts to protect such information from being accessible through other means available to the public. This sub - subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2017, unless reviewed and saved from repeal through reenactment by the Legislature. 3. An agency that is the custodian of the information specified in subparagraph 2. and that is not the employer of the officer, employee, justice, judge, or other person specified in subparagraph 2. shall maintain the exempt status of that information only if the officer, employee, justice, judge, other person, or employing agency of the designated employee submits a written request for maintenance of the exemption to the custodial agency. 0 . The exemptions in this paragraph apply to information held by an agency before, on, or after the effective date of the exemption. 5. This paragraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15, and shall stand repealed on October 2, 2017, unless reviewed and saved from repeal through reenactment by the Legislature. http://www.flsenate.gov/Laws/Statutes/201 2/C hapter 1 1 9/AI I 14/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate (5) OTHER PERSONAL INFORMATION. — (a)1.a. The Legislature acknowledges that the social security number was never intended to be used for business purposes but was intended to be used solely for the administration of the federal Social Security System. The W ;islature is further aware that over time this unique numeric identifier has been used extensively for identity ification purposes and other legitimate consensual purposes. b. The Legislature recognizes that the social security number can be used as a tool to perpetuate fraud against an individual and to acquire sensitive personal, financial, medical, and familial information, the release of which could cause great financial or personal harm to an individual. c. The Legislature intends to monitor the use of social security numbers held by agencies in order to maintain a balanced public policy. 2.a. An agency may not collect an individual's social security number unless the agency has stated in writing the purpose for its collection and unless it is: (I) Specifically authorized by law to do so; or (II) Imperative for the performance of that agency's duties and responsibilities as prescribed by law. b. An agency shall identify in writing the specific federal or state law governing the collection, use, or release of social security numbers for each purpose for which the agency collects the social security number, including any authorized exceptions that apply to such collection, use, or release. Each agency shall ensure that the collection, use, or release of social security numbers complies with the specific applicable federal or state law. c. Social security numbers collected by an agency may not be used by that agency for any purpose other than the purpose provided in the written statement. 3. An agency collecting an individual's social security number shall provide that individual with a copy of the written statement required in subparagraph 2. The written statement also shall state whether collection of the �iividual's social security number is authorized or mandatory under federal or state law. � Each agency shall review whether its collection of social security numbers is in compliance with subparagraph 2. If the agency determines that collection of a social security number is not in compliance with subparagraph 2., the agency shall immediately discontinue the collection of social security numbers for that purpose. 5. Social security numbers held by an agency are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This exemption applies to social security numbers held by an agency before, on, or after the effective date of this exemption. This exemption does not supersede any federal law prohibiting the release of social security numbers or any other applicable public records exemption for social security numbers existing prior to May 13, 2002, or created thereafter. 6. Social security numbers held by an agency may be disclosed if any of the following apply: a. The disclosure of the social security expressly is ressl required by federal or state law or a court order. p Y re q Y b. The disclosure of the social security number is necessary for the receiving agency or governmental entity to perform its duties and responsibilities. c. The individual expressly consents in writing to the disclosure of his or her social security number. d. The disclosure of the social security number is made to comply with the USA Patriot Act of 2001, Pub. L. No. 107 -56, or Presidential Executive Order 13224. e. The disclosure of the social security number is made to a commercial entity for the permissible uses set forth in the federal Driver's Privacy Protection Act of 1994,18 U.S.C. ss. 2721 et seq.; the Fair Credit Reporting Act, 15 U.S.C. ss. 1681 et seq.; or the Financial Services Modernization Act of 1999, U.S.C. ss. 6801 et seq., provided that the authorized commercial entity complies with the requirements of this paragraph. +t. The disclosure of the social security number is for the purpose of the administration of health benefits for an agency employee or his or her dependents. g. The disclosure of the social security number is for the purpose of the administration of a pension fund administered for the agency employee's retirement fund, deferred compensation plan, or defined contribution plan. http://www.flsenate.gov/Laws/Statutes/2012/Chapter119/All 15/25 1/27/2015 Chapter 119 2012 Florida Statutes - The Florida Senate h. The disclosure of the social security number is for the purpose of the administration of the Uniform Commercial Code by the office of the Secretary of State. 7.a. For purposes of this subsection, the term: ) "Commercial activity" means the permissible uses set forth in the federal Driver's Privacy Protection Act of 4, 18 U.S.C. ss. 2721 et seq.; the Fair Credit Reporting Act, 15 U.S.C. ss. 1681 et seq.; or the Financial Services Modernization Act of 1999, 15 U.S.C. ss. 6801 et seq., or verification of the accuracy of personal information received by a commercial entity in the normal course of its business, including identification or prevention of fraud or matching, verifying, or retrieving information. It does not include the display or bulk sale of social security numbers to the public or the distribution of such numbers to any customer that is not identifiable by the commercial entity. (H) "Commercial entity" means any corporation, partnership, limited partnership, proprietorship, sole proprietorship, firm, enterprise, franchise, or association that performs a commercial activity in this state. b. An agency may not deny a commercial entity engaged in the performance of a commercial activity access to social security numbers, provided the social security numbers will be used only in the performance of a commercial activity and provided the commercial entity makes a written request for the social security numbers. The written request must: (I) Be verified as provided in s. 92.525; (II) Be legibly signed by an authorized officer, employee, or agent of the commercial entity; (III) Contain the commercial entity's name, business mailing and location addresses, and business telephone number; and (IV) Contain a statement of the specific purposes for which it needs the social security numbers and how the social security numbers will be used in the performance of a commercial activity, including the identification of any specific federal or state law that permits such use. 0 . An agency may request any other information reasonably necessary to verify the identity of a commercial entity uesting the social security numbers and the specific purposes for which the numbers will be used. 8.a. Any person who makes a false representation in order to obtain a social security number pursuant to this paragraph, or any person who willfully and knowingly violates this paragraph, commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083. b. Any public officer who violates this paragraph commits a noncriminal infraction, punishable by a fine not exceeding $500 per violation. 9. Any affected person may petition the circuit court for an order directing compliance with this paragraph. (b) Bank account numbers and debit, charge, and credit card numbers held by an agency are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This exemption applies to bank account numbers and debit, charge, and credit card numbers held by an agency before, on, or after the effective date of this exemption. (c)1. For purposes of this paragraph, the term: a. "Child" means any person younger than 18 years of age. b. "Government- sponsored recreation program" means a program for which an agency assumes responsibility for a child participating in that program, including, but not limited to, after- school programs, athletic programs, nature programs, summer camps, or other recreational programs. 2. Information that would identify or locate a child who participates in a government- sponsored recreation program is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. 3. Information that would identify or locate a parent or guardian of a child who participates in a government- 46 onsored recreation program is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. 1. This exemption applies to records held before, on, or after the effective date of this exemption. (d) All records supplied by a telecommunications company, as defined by s. 364.02, to an agency which contain the name, address, and telephone number of subscribers are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. http: / /www.fl senate.gov/Laws/Statutes/2012/Chapter119/All 16/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate (e) Any information provided to an agency for the purpose of forming ridesharing arrangements, which information reveals the identity of an individual who has provided his or her name for ridesharing, as defined in s. 341.031, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. AO Medical history records and information related to health or property insurance provided to the Department of LWonomic Opportunity, the Florida Housing Finance Corporation, a county, a municipality, or a local housing finance agency by an applicant for or a participant in a federal, state, or local housing assistance program are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. Governmental entities or their agents shall have access to such confidential and exempt records and information for the purpose of auditing federal, state, or local housing programs or housing assistance programs. Such confidential and exempt records and information may be used in any administrative or judicial proceeding, provided such records are kept confidential and exempt unless otherwise ordered by a court. (g) Biometric identification information held by an agency before, on, or after the effective date of this exemption is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. As used in this paragraph, the term "biometric identification information" means: 1. Any record of friction ridge detail; 2. Fingerprints; 3. Palm prints; and 4. Footprints. (h)1. Personal identifying information of an applicant for or a recipient of paratransit services which is held by an agency is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. 2. This exemption applies to personal identifying information of an applicant for or a recipient of paratransit services which is held by an agency before, on, or after the effective date of this exemption. ii . Confidential and exempt personal identifying information shall be disclosed: . With the express written consent of the individual or the individual's legally authorized representative; b. In a medical emergency, but only to the extent that is necessary to protect the health or life of the individual; c. By court order upon a showing of good cause; or d. To another agency in the performance of its duties and responsibilities. 4. This paragraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15, and shall stand repealed on October 2, 2013, unless reviewed and saved from repeal through reenactment by the Legislature. (i)1. For purposes of this paragraph, "identification and location information" means the: a. Home address, telephone number, and photograph of a current or former United States attorney, assistant United States attorney, judge of the United States Courts of Appeal, United States district judge, or United States magistrate; b. Home address, telephone number, photograph, and place of employment of the spouse or child of such attorney, judge, or magistrate; and c. Name and location of the school or day care facility attended by the child of such attorney, judge, or magistrate. 2. Identification and location information held by an agency is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution if such attorney, judge, or magistrate submits to an agency that has custody of the identification and location information: a. A written request to exempt such information from public disclosure; and b. A written statement that he or she has made reasonable efforts to protect the identification and location iiii ormation from being accessible through other means available to the public. )1. Any information furnished by a person to an agency for the purpose of being provided with emergency notification by the agency, including the person's name, address, telephone number, e-mail address, or other electronic communication address, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This exemption applies to information held by an agency before, on, or after the effective date of this exemption. http: / /www.fl senate.gov /Laws /Statutes /2012/C hapter 119/A11 17/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate 2. This paragraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15, and shall stand repealed on October 2, 2016, unless reviewed and saved from repeal through reenactment by the Legislature. History. -s. 4, ch. 75 -225; ss. 2, 3, 4, 6, ch. 79 -187; s. 1, ch. 82 -95; s. 1, ch. 83 -286; s. 5, ch. 84 -298; s. 1, ch. 85 -18; s. 1, ch. 85-45; s. 1, ch. 85 -86; s. 4, 5 35 -301; s. 2, ch. 86 -11; s. 1, ch. 86 -21; s. 1, ch. 86 -109; s. 2, ch. 88 -188; s. 1, ch. 88 -384; s. 1, ch. 89 -80; s. 63, ch. 90 -136; s. 4, ch. 90 -211; s. 78, ch. -45; s. 1, ch. 91 -96; s. 1, ch. 91 -149; s. 90, ch. 92 -152; s. 1, ch. 93-87; s. 2, ch. 93 -232; s. 3, ch. 93 -404; s. 4, ch. 93 -405; s. 1, ch. 94 -128; s. 3, ch. 94 -130; s. 1, ch. 94 -176; s. 1419, ch. 95 -147; ss. 1, 3, ch. 95 -170; s. 4, ch. 95 -207; s. 1, ch. 95 -320; ss. 3, 5, 6, 7, 8, 9, 11, 12, 14, 15,16,18, 20, 25, 29, 31, 32, 33, 34, ch. 95 -398; s. 3, ch. 96 -178; s. 41, ch. 96 -406; s. 18, ch. 96 -410; s. 1, ch. 98 -9; s. 7, ch. 98 -137; s. 1, ch. 98 -259; s. 2, ch. 99 -201; s. 27, ch. 2000 -164; s. 1, ch. 2001 -249; s. 29, ch. 2001 -261; s. 1, ch. 2001 -361; s. 1, ch. 2001 -364; s. 1, ch. 2002 -67; s. 1, ch. 2002 -256; s. 1, ch. 2002 -257; ss. 2, 3, ch. 2002 -391; s. 11, ch. 2003 -1; s. 1, ch. 2003 -16; s. 1, ch. 2003 -100; s. 1, ch. 2003 -137; ss. 1, 2, ch. 2003 -157; ss. 1, 2, ch. 2004 -9; ss. 1, 2, ch. 2004 -32; ss. 1, 3, ch. 2004 -95; s. 7, ch. 2004 -335; s. 4, ch. 2005 -213; s. 41, ch. 2005 -236; ss. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, ch. 2005 -251; s. 14, ch. 2006 -1; s. 1, ch. 2006 -158; s. 1, ch. 2006 -180; s. 1, ch. 2006 -181; s. 1, ch. 2006 -211; s. 1, ch. 2006 -212; s. 13, ch. 2006- 224; s. 1, ch. 2006 -284; s. 1, ch. 2006 -285; s. 1, ch. 2007 -93; s. 1, ch. 2007 -95; s. 1, ch. 2007 -250; s. 1, ch. 2007 -251; s. 1, ch. 2008 -41; s. 2, di. 2008 -57; s. 1, ch. 2008 -145; ss. 1, 3, ch. 2008 -234; s. 1, ch. 2009 -104; ss. 1, 2, ch. 2009 -150; s. 1, ch. 2009 -169; ss. 1, 2, ch. 2009 -235; s. 1, ch. 2009 -237; s. 1, ch. 2010 -71; s. 1, ch. 2010 -171; s. 1, ch. 2011 -83; s. 1, ch. 2011 -85; s. 1, ch. 2011 -140; s. 48, ch. 2011 -142; s. 1, ch. 2011 -201; s. 1, ch. 2011 -202; s. 1, ch. 2012 -149; s. 1, ch. 2012 -214; s. 1, ch. 2012 -216. Note. - A. Additional exemptions from the application of this section appear in the General Index to the Florida Statutes under the heading "Public Records." B. Portions former ss. 119.07(6), 119.072, and 119.0721; subparagraph (2)(g)1. former s. 119.0711(1). 119.0711 Executive branch agency exemptions from inspection or copying of public records. - When an agency of the executive branch of state government seeks to acquire real property by purchase or through the exercise of the wer of eminent domain, all appraisals, other reports relating to value, offers, and counteroffers must be in writing d are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until execution of a valid option contract or a written offer to sell that has been conditionally accepted by the agency, at which time the exemption shall expire. The agency shall not finally accept the offer for a period of 30 days in order to allow public review of the transaction. The agency may give conditional acceptance to any option or offer subject only to final acceptance by the agency after the 30 -day review period. If a valid option contract is not executed, or if a written offer to sell is not conditionally accepted by the agency, then the exemption shall expire at the conclusion of the condemnation litigation of the subject property. An agency of the executive branch may exempt title information, including names and addresses of property owners whose property is subject to acquisition by purchase or through the exercise of the power of eminent domain, from s. 119.07(1) and s. 24(a), Art. I of the State Constitution to the same extent as appraisals, other reports relating to value, offers, and counteroffers. For the purpose of this subsection, the term "option contract" means an agreement of an agency of the executive branch of state government to purchase real property subject to final agency approval. This subsection has no application to other exemptions from s. 119.07(1) which are contained in other provisions of law and shall not be construed to be an express or implied repeal thereof. History. -s. 1, ch. 85 -18; s. 1, ch. 86 -21; s. 1, ch. 89 -29; ss. 19, 25, ch. 95 -398; s. 7, ch. 2004 -335; ss. 30, 31, ch. 2005 -251; s. 1, ch. 2008 -145. Note. - A. Additional exemptions from the application of this section appear in the General Index to the Florida Statutes under the heading "Public Records." B. Former s. 119.07(6)(n), 411119.0712 Executive branch agency- specific exemptions from inspection or copying of public records. - (1) DEPARTMENT OF HEALTH. - All personal identifying information contained in records relating to an individual's personal health or eligibility for health - related services held by the Department of Health is confidential http: //www.flsenate.gov /Laws /Statutes /2012/Chapter119 /All 18/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution, except as otherwise provided in this subsection. Information made confidential and exempt by this subsection shall be disclosed: (a) With the express written consent of the individual or the individual's legally authorized representative. ) In a medical emergency, but only to the extent necessary to protect the health or life of the individual. c) Ilk By court order upon a showing of good cause. (d) To a health research entity, if the entity seeks the records or data pursuant to a research protocol approved by the department, maintains the records or data in accordance with the approved protocol, and enters into a purchase and data -use agreement with the department, the fee provisions of which are consistent with s. 119.07(4). The department may deny a request for records or data if the protocol provides for intrusive follow -back contacts, has not been approved by a human studies institutional review board, does not plan for the destruction of confidential records after the research is concluded, is administratively burdensome, or does not have scientific merit. The agreement must restrict the release of any information that would permit the identification of persons, limit the use of records or data to the approved research protocol, and prohibit any other use of the records or data. Copies of records or data issued pursuant to this paragraph remain the property of the department. (2) DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES. — (a) For purposes of this subsection, the term "motor vehicle record" means any record that pertains to a motor vehicle operator's permit, motor vehicle title, motor vehicle registration, or identification card issued by the Department of Highway Safety and Motor Vehicles. (b) Personal information, including highly restricted personal information as defined in 18 U.S.C. s. 2725, contained in a motor vehicle record is confidential pursuant to the federal Driver's Privacy Protection Act of 1994,18 U.S.C. ss. 2721 et seq. Such information may be released only as authorized by that act; however, information received pursuant to that act may not be used for mass commercial solicitation of clients for litigation against motor vehicle ers. r vehicle record is confidential and exempt from s. p �)1. Emergency contact information contained in a motor 119.07(1) and s. 24(a), Art. I of the State Constitution. 2. Without the express consent of the person to whom such emergency contact information applies, the emergency contact information contained in a motor vehicle record may be released only to law enforcement agencies for purposes of contacting those listed in the event of an emergency. (d) The department may adopt rules to carry out the purposes of this subsection and the federal Driver's Privacy a Protection Act of 1994, 18 U.S.C. ss. 2721 et seq. Rules adopted by the department may p rovide for the payment of applicable fees and, prior to the disclosure of personal information pursuant to this subsection or the federal Driver's Privacy Protection Act of 1994,18 U.S.C. ss. 2721 et seq., may require the meeting of conditions by the requesting person for the purposes of obtaining reasonable assurance concerning the identity of such requesting person, and, to the extent required, assurance that the use will be only as authorized or that the consent of the person who is the subject of the personal information has been obtained. Such conditions may include, but need not be limited to, the making and filing of a written application in such form and containing such information and certification requirements as the department requires. (3) OFFICE OF FINANCIAL REGULATION. — (a) The following information held by the Office of Financial Regulation before, on, or after July 1, 2011, is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution: 1. Any information received from another state or federal regulatory, administrative, or criminal justice agency at is otherwise confidential or exempt pursuant to the laws of that state or pursuant to federal law. 4i2 Any information that is received or developed by the office as part of a joint or multiagency examination or investigation with another state or federal regulatory, administrative, or criminal justice agency. The office may obtain and use the information in accordance with the conditions imposed by the joint or multiagency agreement. This exemption does not apply to information obtained or developed by the office that would otherwise be available for http: / /www.flsenate.gov /Laws /Statutes /2012/Chapter119 /All 19/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate public inspection if the office had conducted an independent examination or investigation under Florida law. (b) This subsection is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2016, unless reviewed and saved from repeal through reenactment by the Legislature. •istory.-s. 1, ch. 97 -185; s. 1, ch. 2001 -108; ss. 1, 2, ch. 2004 -62; s. 7, ch. 2004 -335; ss. 32, 33, ch. 2005 -251; s. 1, ch. 2006 -199; s. 1, ch. 2007 -94; 2, ch. 2009 -153; s. 1, ch. 2011 -88. Note. - A. Additional exemptions from the application of this section appear in the General Index to the Florida Statutes under the heading "Public Records." B. Former s. 119.07(6)(aa), (cc). 119.0713 Local government agency exemptions from inspection or copying of public records. - (1) All complaints and other records in the custody of any unit of local government which relate to a complaint of discrimination relating to race, color, religion, sex, national origin, age, handicap, marital status, sale or rental of housing, the provision of brokerage services, or the financing of housing are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until a finding is made relating to probable cause, the investigation of the complaint becomes inactive, or the complaint or other record is made part of the official record of any hearing or court proceeding. This provision does not affect any function or activity of the Florida Commission on Human Relations. Any state or federal agency that is authorized to access such complaints or records by any provision of law shall be granted such access in the furtherance of such agency's statutory duties. This subsection does not modify or repeal any special or local act. (2)(a) The audit report of an internal auditor and the investigative report of the inspector general prepared for or on behalf of a unit of local government becomes a public record when the audit or investigation becomes final. As d in this subsection, the term "unit of local government" means a county, municipality, special district, local ency, authority, consolidated city- county government, or any other local governmental body or public body corporate or politic authorized or created by general or special law. An audit or investigation becomes final when the audit report or investigative report is presented to the unit of local government. Audit workpapers and notes related to such audit and information received, produced, or derived from an investigation are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the audit or investigation is complete and the audit report becomes final or when the investigation is no longer active. An investigation is active if it is continuing with a reasonable, good faith anticipation of resolution and with reasonable dispatch. (b) Paragraph (a) is subject to the Open Government Sunset Review Act in accordance with s. 119.15, and shall stand repealed on October 2, 2016, unless reviewed and saved from repeal through reenactment by the Legislature. (3) Any data, record, or document used directly or solely by a municipally owned utility to prepare and submit a bid relative to the sale, distribution, or use of any service, commodity, or tangible personal property to any customer or prospective customer is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This exemption commences when a municipal utility identifies in writing a specific bid to which it intends to respond. This exemption no longer applies after the contract for sale, distribution, or use of the service, commodity, or tangible personal property is executed, a decision is made not to execute such contract, or the project is no longer under active consideration. The exemption in this subsection includes the bid documents actually furnished in response to the request for bids. However, the exemption for the bid documents submitted no longer applies after the bids are opened by the customer or prospective customer. History. -s. 1, ch. 86 -21; s. 24, ch. 95 -398; s. 1, ch. 95 -399; s. 1, ch. 96 -230; s. 1, ch. 2001 -87; ss. 1, 2, ch. 2003 -110; s. 7, ch. 2004 -335; ss. 34, 35, 36, 2005 -251; ss. 3, 5, ch. 2008 -57; s. 1, ch. 2011 -87. Note. - A. Additional exemptions from the application of this section appear in the General Index to the Florida Statutes under the heading "Public Records." http://www.flsenate.gov/Laws/Statutes/2012/Chapter119/All 20/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate B. Former s. 119.07(6)(p), (y), (z), (hh). 119.0714 Court files; court records; official records. — _ (1) COURT FILES. — Nothing in this chapter shall be construed to exempt from s. 119.07(1) a public record that • made a part of a court file and that is not specifically closed by order of court, except: (a) A public record that was prepared by an agency attorney or prepared at the attorney's express direction as provided in s. 119.071(1)(d). (b) Data processing software as provided in s. 119.071(1)(f). (c) Any information revealing surveillance techniques or procedures or personnel as provided in s. 119.071(2)(d). (d) Any comprehensive inventory of state and local law enforcement resources, and any comprehensive policies or plans compiled by a criminal justice agency, as provided in s. 119.071(2)(d). (e) Any information revealing the substance of a confession of a person arrested as provided in s. 119.071(2)(e). (f) Any information revealing the identity of a confidential informant or confidential source as provided in s. 119.071(2)(f). (g) Any information revealing undercover personnel of any criminal justice agency as provided in s. 119.071(4)(c). (h) Criminal intelligence information or criminal investigative information that is confidential and exempt as provided in s. 119.071(2)(h). (i) Social security numbers as provided in s. 119.071(5)(a). (j) Bank account numbers and debit, charge, and credit card numbers as provided in s. 119.071(5)(b). (2) COURT RECORDS.— (a) Until January 1, 2012, if a social security number or a bank account, debit, charge, or credit card number is included in a court file, such number may be included as part of the court record available for public inspection and copying unless redaction is requested by the holder of such number or by the holder's attorney or legal guardian. � b) A request for redaction must be a signed, legibly written request specifying the case name, case number, o cument heading, and page number. The request must be delivered by mail, facsimile, electronic transmission, or in person to the clerk of the court. The clerk of the court does not have a duty to inquire beyond the written request to verify the identity of a person requesting redaction. (c) A fee may not be charged for the redaction of a social security number or a bank account, debit, charge, or credit card number pursuant to such request. (d) The clerk of the court has no liability for the inadvertent release of social security numbers, or bank account, debit, charge, or credit card numbers, unknown to the clerk of the court in court records filed on or before January 1, 2012. (e)1. On January 1, 2012, and thereafter, the clerk of the court must keep social security numbers confidential and exempt as provided for in s. 119.071(5)(a), and bank account, debit, charge, and credit card numbers exempt as provided for in s. 119.071(5)(b), without any person having to request redaction. 2. Section 119.071(5)(a)7. and 8. does not apply to the clerks of the court with respect to court records. (3) OFFICIAL RECORDS. — (a) Any person who prepares or files a record for recording in the official records as provided in chapter 28 may not include in that record a social security number or a bank account, debit, charge, or credit card number unless otherwise expressly required by law. (b)1. If a social security number or a bank account, debit, charge, or credit card number is included in an official record, such number may be made available as part of the official records available for public inspection and copying *less redaction is requested by the holder of such number or by the holder's attorney or legal guardian. 2. If such record is in electronic format, on January 1, 2011, and thereafter, the county recorder must use his or her best effort, as provided in paragraph (h), to keep social security numbers confidential and exempt as provided for in s. 119.071(5)(a), and to keep complete bank account, debit, charge, and credit card numbers exempt as provided for in s. http: / /www.flsenate.gov/ Laws /Statutes /2012/Chapter119 /All 21/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate 119.071(5)(b), without any person having to request redaction. 3. Section 119.071(5)(a)7. and 8. does not apply to the county recorder with respect to official records. (c) The holder of a social security number or a bank account, debit, charge, or credit card number, or the holder's W rney or legal guardian, may request that a county recorder redact from an image or copy of an official record ced on a county recorder's publicly available Internet website or on a ublicl available Internet website used b p y y a county recorder to display public records, or otherwise made electronically available to the public, his or her social security number or bank account, debit, charge, or credit card number contained in that official record. (d) A request for redaction must be a signed, legibly written request and must be delivered by mail, facsimile, electronic transmission, or in person to the county recorder. The request must specify the identification page number of the record that contains the number to be redacted. (e) The county recorder does not have a duty to inquire beyond the written request to verify the identity of a person requesting redaction. (f) A fee may not be charged for redacting a social security number or a bank account, debit, charge, or credit card number. (g) A county recorder shall immediately and conspicuously post signs throughout his or her offices for public viewing, and shall immediately and conspicuously post on any Internet website or remote electronic site made available by the county recorder and used for the ordering or display of official records or images or copies of official records, a notice stating, in substantially similar form, the following: 1. On or after October 1, 2002, any person preparing or filing a record for recordation in the official records may not include a social security number or a bank account, debit, charge, or credit card number in such document unless required by law. 2. Any person has a right to request a county recorder to remove from an image or copy of an official record W ' aced on a county recorder's publicly available Internet website or on a publicly available Internet website used by a nty recorder to display public records, or otherwise made electronically available to the general public, any social security number contained in an official record. Such request must be made in writing and delivered by mail, facsimile, or electronic transmission, or delivered in person, to the county recorder. The request must specify the identification page number that contains the social security number to be redacted. A fee may not be charged for the redaction of a social security number pursuant to such a request. (h) If the county recorder accepts or stores official records in an electronic format, the county recorder must use his or her best efforts to redact all social security numbers and bank account, debit, charge, or credit card numbers from electronic copies of the official record. The use of an automated program for redaction shall be deemed to be the best effort in performing the redaction and shall be deemed in compliance with the requirements of this subsection. (i) The county recorder is not liable for the inadvertent release of social security numbers, or bank account, debit, charge, or credit card numbers, filed with the county recorder. History. —s. 2, ch. 79 -187; s. 1, ch. 83 -286; s. 5, ch. 84 -298; s. 1, ch. 85 -86; s. 1, ch. 86 -109; s. 2, ch. 88 -188; s. 26, ch. 90 -344; s. 36, ch. 95 -398; s. 7, ch. 2004-335; s. 2, ch. 2005 -251; s. 2, ch. 2007 -251; s. 5, ch. 2008 -234; s. 2, ch. 2009 -237; s. 23, ch. 2010 -162; s. 4, ch. 2011 -83. Note.— Subsection (1) former s. 119.07(6). 119.084 Copyright of data processing software created by governmental agencies; sale price and licensing fee. — (1) As used in this section, "agency" has the same meaning as in s. 119.011(2), except that the term does not include any private agency, person, partnership, corporation, or business entity. (2) An agency is authorized to acquire and hold a copyright for data processing software created by the agency I d to enforce its rights pertaining to such copyright, provided that the agency complies with the requirements of this subsection. (a) An agency that has acquired a copyright for data processing software created by the agency may sell or license the copyrighted data processing software to any public agency or private person. The agency may establish a price for http://www.flsenate.gov/Laws/Statutes/2012/Chapter119/All 22/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate the sale and a licensing fee for the use of such data processing software that may be based on market considerations. However, the prices or fees for the sale or licensing of copyrighted data processing software to an individual or entity solely for application to information maintained or generated by the agency that created the copyrighted data cessing software shall be determined pursuant to s. 119.07(4). ) Proceeds from the sale or licensing of copyrighted data processing software shall be deposited by the agency into a trust fund for the agency's appropriate use for authorized purposes. Counties, municipalities, and other political subdivisions of the state may designate how such sale and licensing proceeds are to be used. (c) The provisions of this subsection are supplemental to, and shall not supplant or repeal, any other provision of law that authorizes an agency to acquire and hold copyrights. History. —s. 1, ch. 2001 -251; s. 9, ch. 2004 -335; s. 1, ch. 2006 -286. 119.092 Registration by federal employer's registration number.— Each state agency which registers or licenses corporations, partnerships, or other business entities shall include, by July 1, 1978, within its numbering system, the federal employer's identification number of each corporation, partnership, or other business entity registered or licensed by it. Any state agency may maintain a dual numbering system in which the federal employer's identification number or the state agency's own number is the primary identification number; however, the records of such state agency shall be designed in such a way that the record of any business entity is subject to direct location by the federal employer's identification number. The Department of State shall keep a registry of federal employer's identification numbers of all business entities, registered with the Division of Corporations, which registry of numbers may be used by all state agencies. History.—s. 1, ch. 77 -148. 119.10 Violation of chapter; penalties. - 01) Any public officer who: (a) Violates any provision of this chapter commits a noncriminal infraction, punishable by fine not exceeding $500. (b) Knowingly violates the provisions of s. 119.07(1) is subject to suspension and removal or impeachment and, in addition, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (2) Any person who willfully and knowingly violates: (a) Any of the provisions of this chapter commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (b) Section 119.105 commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. History. —s. 10, ch. 67 -125; s. 74, ch. 71 -136; s. 5, ch. 85 -301; s. 2, ch. 2001 -271; s. 11, ch. 2004 -335. 119.105 Protection of victims of crimes or accidents. Police reports are public records except as otherwise made exempt or confidential. Every person is allowed to examine nonexempt or nonconfidential police reports. A person who comes into possession of exempt or confidential information contained in police reports may not use that information for any commercial solicitation of the victims or relatives of the victims of the reported crimes or accidents and may not knowingly disclose such information to any third party for the purpose of such solicitation during the period of time that information remains exempt or confidential. This section does not prohibit the publication of such information to the general public by any news media legally entitled to possess that information or the use of such information for any other data collection or analysis purposes by those entitled to possess that information. H istory. —s. 1, ch. 90 -280; s. 2, ch. 2003 -411; s. 12, ch. 2004-335. 119.11 Accelerated hearing; immediate compliance. — (1) Whenever an action is filed to enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case priority over other pending cases. http: //www.fisenate.gov/Laws /Statutes /2012/Chapter119 /AII 23/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate (2) Whenever a court orders an agency to open its records for inspection in accordance with this chapter, the agency shall comply with such order within 48 hours, unless otherwise provided by the court issuing such order, or unless the appellate court issues a stay order within such 48 -hour period. gil A stay order shall not be issued unless the court determines that there is a substantial probability that opening records for inspection will result in significant damage. (4) Upon service of a complaint, counterclaim, or cross -claim in a civil action brought to enforce the provisions of this chapter, the custodian of the public record that is the subject matter of such civil action shall not transfer custody, alter, destroy, or otherwise dispose of the public record sought to be inspected and examined, notwithstanding the applicability of an exemption or the assertion that the requested record is not a public record subject to inspection and examination under s. 119.07(1), until the court directs otherwise. The person who has custody of such public record may, however, at any time permit inspection of the requested record as provided in s. 119.07(1) and other provisions of law. History. —s. 5, ch. 75 -225; s. 2, ch. 83 -214; s. 6, ch. 84 -298. 119.12 Attorney's fees. — If a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys' fees. History. —s. 5, ch. 75 -225; s. 7, ch. 84 -298; s. 13, ch. 2004 -335. 119.15 Legislative review of exemptions from public meeting and public records requirements. — (1) This section may be cited as the "Open Government Sunset Review Act." (2) This section provides for the review and repeal or reenactment of an exemption from s. 24, Art. I of the State ar stitution and s. 119.07(1) or s. 286.011. This act does not apply to an exemption that: ) Is required by federal law; or (b) Applies solely to the Legislature or the State Court System. (3) In the 5th year after enactment of a new exemption or substantial amendment of an existing exemption, the exemption shall be repealed on October 2nd of the 5th year, unless the Legislature acts to reenact the exemption. (4)(a) A law that enacts a new exemption or substantially amends an existing exemption must state that the record or meeting is: 1. Exempt from s. 24, Art. I of the State Constitution; 2. Exempt from s. 119.07(1) or s. 286.011; and 3. Repealed at the end of 5 years and that the exemption must be reviewed by the Legislature before the scheduled repeal date. (b) For purposes of this section, an exemption is substantially amended if the amendment expands the scope of the exemption to include more records or information or to include meetings as well as records. An exemption is not substantially amended if the amendment narrows the scope of the exemption. (c) This section is not intended to repeal an exemption that has been amended following legislative review before the scheduled repeal of the exemption if the exemption is not substantially amended as a result of the review. (5)(a) By June 1 in the year before the repeal of an exemption under this section, the Office of Legislative Services shall certify to the President of the Senate and the Speaker of the House of Representatives the language and statutory citation of each exemption scheduled for repeal the following year. dik(b) An exemption that is not identified and certified to the President of the Senate and the Speaker of the House of Wpresentatives is not subject to legislative review and repeal under this section. If the office fails to certify an exemption that it subsequently determines should have been certified, it shall include the exemption in the following year's certification after that determination. http: / /www.fl senate.gov/Laws/Statutes/2012/Chapter119/All 24/25 1/27/2015 Chapter 119 - 2012 Florida Statutes - The Florida Senate (6)(a) As part of the review process, the Legislature shall consider the following: 1. What specific records or meetings are affected by the exemption? 2. Whom does the exemption uniquely affect, as opposed to the general public? 6 . What is the identifiable public purpose or goal of the exemption? . Can the information contained in the records or discussed in the meeting be readily obtained by alternative means? If so, how? 5. Is the record or meeting protected by another exemption? 6. Are there multiple exemptions for the same type of record or meeting that it would be appropriate to merge? (b) An exemption may be created, revised, or maintained only if it serves an identifiable public purpose, and the exemption may be no broader than is necessary to meet the public purpose it serves. An identifiable public purpose is served if the exemption meets one of the following purposes and the Legislature finds that the purpose is sufficiently compelling to override the strong public policy of open government and cannot be accomplished without the exemption: 1. Allows the state or its political subdivisions to effectively and efficiently administer a governmental program, which administration would be significantly impaired without the exemption; 2. Protects information of a sensitive personal nature concerning individuals, the release of which information would be defamatory to such individuals or cause unwarranted damage to the good name or reputation of such individuals or would jeopardize the safety of such individuals. However, in exemptions under this subparagraph, only information that would identify the individuals may be exempted; or 3. Protects information of a confidential nature concerning entities, including, but not limited to, a formula, pattern, device, combination of devices, or compilation of information which is used to protect or further a business advantage over those who do not know or use it, the disclosure of which information would injure the affected entity the marketplace. W 7) Records made before the date of a repeal of an exemption under this section may not be made public unless otherwise provided by law. In deciding whether the records shall be made public, the Legislature shall consider whether the damage or loss to persons or entities uniquely affected by the exemption of the type specified in subparagraph (6)(b)2. or subparagraph (6)(b)3. would occur if the records were made public. (8) Notwithstanding s. 768.28 or any other law, neither the state or its political subdivisions nor any other public body shall be made party to any suit in any court or incur any liability for the repeal or revival and reenactment of an exemption under this section. The failure of the Legislature to comply strictly with this section does not invalidate an otherwise valid reenactment. History. —s. 2, ch. 95 -217; s. 25, ch. 98 -136; s. 37, ch. 2005 -251; s. 15, ch. 2006 -1; s. 5, ch. 2012 -51. Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright © 2000- 2015 State of Florida. • http: / /www.flsenate.gov /Laws /Statutes /2012/Chapter119 /AI I 25/25 SECTION 13 • EXHIBIT "L" FLORIDA STATUTES CHAPTER 768 NEGLIGENCE SECTION 768.28 1/27/2015 Chapter 768 Section 28 - 2011 Florida Statutes - The Florida Senate The Florida Senate 2011 Florida Statutes .tle XLV Chapter 768 SECTION 28 TORTS NEGLIGENCE Waiver of sovereign immunity in tort actions; recovery limits; Entire Chapter limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management programs. 768.28 Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management programs. — (1) In accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee's office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. Any such action may be brought in the county where the property in litigation is located or, if the affected agency or subdivision has an office in such county for the transaction of its customary ksiness, where the cause of action accrued. However, any such action against a state university board of trustees shall brought in the county in which that university's main campus is located or in the county in which the cause of action accrued if the university maintains therein a substantial presence for the transaction of its customary business. (2) As used in this act, "state agencies or subdivisions" include the executive departments, the Legislature, the ers and the independent establishments of the state, including 'udicial branch (including public defenders), p state 1 ( gp university boards of trustees; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities, including the Florida Space Authority. (3) Except for a municipality and the Florida Space Authority, the affected agency or subdivision may, at its discretion, request the assistance of the Department of Financial Services in the consideration, adjustment, and settlement of any claim under this act. (4) Subject to the provisions of this section, any state agency or subdivision shall have the right to appeal any award, compromise, settlement, or determination to the court of appropriate jurisdiction. (5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a person which exceeds the sum of $200,000 or any claim or judgment, judgment by any one p Y l gment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $300,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $200,000 or $300,000, as the ase may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may ii paid in part or in whole only by further act of the Legislature. Notwithstanding the limited waiver of sovereign immunity provided herein, the state or an agency or subdivision thereof may agree, within the limits of insurance coverage provided, to settle a claim made or a judgment rendered against it without further action by the Legislature, but the state or agency or subdivision thereof shall not be deemed to have waived any defense of sovereign immunity http: //www.flsenate.gov/laws /statutes /2011/768.28 1/7 1/27/2015 Chapter 768 Section 28- 2011 Florida Statutes - The Florida Senate or to have increased the limits of its liability as a result of its obtaining insurance coverage for tortious acts in excess of the $200,000 or $300,000 waiver provided above. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign •munitY before July 1, 1974. (6) An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality or the Florida Space Authority, presents such claim in writing to the Department of Financial Services, within 3 years after such claim accrues and the Department of Financial Services or the appropriate agency denies the claim in writing; except that, if: 1. Such claim is for contribution pursuant to s. 768.31, it must be so presented within 6 months after the judgment against the tortfeasor seeking contribution has become final by lapse of time for appeal or after appellate review or, if there is no such judgment, within 6 months after the tortfeasor seeking contribution has either discharged the common liability by payment or agreed, while the action is pending against her or him, to discharge the common liability; or 2. Such action is for wrongful death, the claimant must present the claim in writing to the Department of Financial Services within 2 years after the claim accrues. (b) For purposes of this section, the requirements of notice to the agency and denial of the claim pursuant to paragraph (a) are conditions precedent to maintaining an action but shall not be deemed to be elements of the cause of action and shall not affect the date on which the cause of action accrues. (c) The claimant shall also provide to the agency the claimant's date and place of birth and social security number if the claimant is an individual, or a federal identification number if the claimant is not an individual. The claimant shall also state the case style, tribunal, the nature and amount of all adjudicated penalties, fines, fees, victim restitution fund, and other judgments in excess of $200, whether imposed by a civil, criminal, or administrative tribunal, owed by claimant to the state, its agency, officer or subdivision. If there exists no prior adjudicated unpaid claim in excess of 00, the claimant shall so state. 1 (d) For purposes of this section, complete, accurate, and timely compliance with the requirements of paragraph (c) shall occur prior to settlement payment, close of discovery or commencement of trial, whichever is sooner; provided the ability to plead setoff is not precluded by the delay. This setoff shall apply only against that part of the settlement or judgment payable to the claimant, minus claimant's reasonable attorney's fees and costs. Incomplete or inaccurate disclosure of unpaid adjudicated claims due the state, its agency, officer, or subdivision, may be excused by the court upon a showing by the preponderance of the evidence of the claimant's lack of knowledge of an adjudicated claim and reasonable inquiry by, or on behalf of, the claimant to obtain the information from public records. Unless the appropriate agency had actual notice of the information required to be disclosed by paragraph (c) in time to assert a setoff, an unexcused failure to disclose shall, upon hearing and order of court, cause the claimant to be liable for double the original undisclosed judgment and, upon further motion, the court shall enter judgment for the agency in that amount. Except as provided otherwise in this subsection, the failure of the Department of Financial Services or the appropriate agency to make final disposition of a claim within 6 months after it is filed shall be deemed a final denial of the claim for purposes of this section. For purposes of this subsection, in medical malpractice actions and in wrongful death actions, the failure of the Department of Financial Services or the appropriate agency to make final disposition of a claim within 90 days after it is filed shall be deemed a final denial of the claim. The statute of limitations for medical malpractice actions and wrongful death actions is tolled for the period of time taken by the Department of Financial Services or the appropriate a g ency to deny the claim. The provisions of this subsection do not . reply to such claims as may be asserted by counterclaim pursuant to s. 768.14. (7) In actions brought pursuant to this section, process shall be served upon the head of the agency concerned and also, except as to a defendant municipality or the Florida Space Authority, upon the Department of Financial Services; and the department or the agency concerned shall have 30 days within which to plead thereto. (8) No attorney may charge, demand, receive, or collect, for services rendered, fees in excess of 25 percent of any http: //www.flsenate.gov/laws /statutes /2011/768.28 2/7 1/27/2015 Chapter 768 Section 28 - 2011 Florida Statutes - The Florida Senate judgment or settlement. (9)(a) No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or missi ission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in on faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. However, such officer, employee, or agent shall be considered an adverse witness in a tort action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function. The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional officers shall be by action against the governmental entity, or the head of such entity in her or his official capacity, or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. 2 (b) As used in this subsection, the term: 1. "Employee" includes any volunteer firefighter. 2. "Officer, employee, or agent" includes, but is not limited to, any health care provider when providing services pursuant to s. 766.1115; any member of the Florida Health Services Corps, as defined in s. 381.0302, who provides uncompensated care to medically indigent persons referred by the Department of Health; any nonprofit independent college or university located and chartered in this state which owns or operates an accredited medical school, and its employees or agents, when providing patient services pursuant to paragraph (10)(f); and any public defender or her or ' s employee or agent, including, among others, an assistant public defender and an investigator. (c) For purposes of the waiver of sovereign immunity only, a member of the Florida National Guard is not acting within the scope of state employment when performing duty under the provisions of Title 10 or Title 32 of the United States Code or other applicable federal law; and neither the state nor any individual may be named in any action under this chapter arising from the performance of such federal duty. (d) The employing agency of a law enforcement officer as defined in s. 943.10 is not liable for injury, death, or property damage effected or caused by a person fleeing from a law enforcement officer in a motor vehicle if: 1 I 1. The pursuit is conducted in a manner that does not involve conduct by the officer which is so reckless or I wanting in care as to constitute disregard of human life, human rights, safety, or the property of another; 2. At the time the law enforcement officer initiates the pursuit, the officer reasonably believes that the person fleeing has committed a forcible felony as defined in s. 776.08; and 3. The pursuit is conducted by the officer pursuant to a written policy governing high -speed pursuit adopted by the employing agency. The policy must contain specific procedures concerning the proper method to initiate and terminate high -speed pursuit. The law enforcement officer must have received instructional training from the employing agency on the written policy governing high -speed pursuit. (10)(a) Health care providers or vendors, or any of their employees or agents, that have contractually agreed to act as agents of the Department of Corrections to provide health care services to inmates of the state correctional system shall be considered agents of the State of Florida, Department of Corrections, for the purposes of this section, while acting within the scope of and pursuant to guidelines established in said contract or by rule. The contracts shall rovide for the indemnification of the state by the agent for any liabilities incurred up to the limits set out in this ii apter. (b) This subsection shall not be construed as designating persons providing contracted health care services to inmates as employees or agents of the state for the purposes of chapter 440. (c) For purposes of this section, regional poison control centers created in accordance with s. 395.1027 and http: //www.flsenate.gov/laws /statutes /2011/768.28 3/7 1 1/27/2015 Chapter 768 Section 28 - 2011 Florida Statutes - The Florida Senate coordinated and supervised under the Division of Children's Medical Services Prevention and Intervention of the Department of Health, or any of their employees or agents, shall be considered agents of the State of Florida, Department of Health. Any contracts with poison control centers must provide, to the extent permitted by law, for the ap - - - lemnification of the state by the agency for any liabilities incurred up to the limits set out in this chapter. d) For the purposes of this section, operators, dispatchers, and providers of security for rail services and rail facility maintenance providers in the South Florida Rail Corridor, or any of their employees or agents, performing such services under contract with and on behalf of the South Florida Regional Transportation Authority or the Department of Transportation shall be considered agents of the state while acting within the scope of and pursuant to guidelines established in said contract or by rule. (e) For purposes of this section, a professional firm that provides monitoring and inspection services of the work required for state roadway, bridge, or other transportation facility construction projects, or any of the firm's employees performing such services, shall be considered agents of the Department of Transportation while acting within the scope of the firm's contract with the Department of Transportation to ensure that the project is constructed in conformity with the project's plans, specifications, and contract provisions. Any contract between the professional firm and the state, to the extent permitted by law, shall provide for the indemnification of the department for any liability, including reasonable attorney's fees, incurred up to the limits set out in this chapter to the extent caused by the negligence of the firm or its employees. This paragraph shall not be construed as designating persons who provide monitoring and inspection services as employees or agents of the state for purposes of chapter 440. This paragraph is not applicable to the professional firm or its employees if involved in an accident while operating a motor vehicle. This paragraph is not applicable to a firm engaged by the Department of Transportation for the design or construction of a state roadway, bridge, or other transportation facility construction project or to its employees, agents, or subcontractors. A 2(f) For purposes of this section, any nonprofit independent college or university located and chartered in this to which owns or operates an accredited medical school, or any of its employees or agents, and which has agreed in an affiliation agreement or other contract to provide, or permit its employees or agents to provide, patient services as agents of a teaching hospital, is considered an agent of the teaching hospital while acting within the scope of and pursuant to guidelines established in the affiliation agreement or other contract. To the extent allowed by law, the contract must provide for the indemnification of the teaching hospital, up to the limits set out in this chapter, by the agent for any liability incurred which was caused by the negligence of the college or university or its employees or agents. The contract must also provide that those limited portions of the college, university, or medical school which are directly providing services pursuant to the contract and which are considered an agent of the teaching hospital for purposes of this section are deemed to be acting on behalf of a public agency as defined in s. 119.011(2). 1. For purposes of this paragraph, the term: a. "Employee or agent" means an officer, employee, agent, or servant of a nonprofit independent college or university located and chartered in this state which owns or operates an accredited medical school, including, but not limited to, the faculty of the medical school, any health care practitioner or licensee as defined in s. 456.001 for which the college or university is vicariously liable, and the staff or administrators of the medical school. b. "Patient services" mean: (I) Comprehensive health care services as defined in s. 641.19, including any related administrative service, provided to patients in a teaching hospital; (II) Training and supervision of interns, residents, and fellows providing patient services in a teaching hospital; or (III) Training and supervision of medical students in a teaching hospital. •. "Teaching hospital" means a teaching hospital as defined in s. 408.07 which is owned or operated by the state, a county or municipality, a public health trust, a special taxing district, a governmental entity having health care responsibilities, or a not - for - profit entity that operates such facility as an agent of the state, or a political subdivision of the state, under a lease or other contract. http: //www.flsenate.gov/laws /statutes /2011/768.28 4/7 i 1/27/2015 Chapter 768 Section 28 - 2011 Florida Statutes - The Florida Senate 2. The teaching hospital or the medical school, or its employees or agents, must provide notice to each patient, or the patient's legal representative, that the college or university that owns or operates the medical school and the employees or agents of that college or university are acting as agents of the teaching hospital and that the exclusive edy for injury or damage suffered as the result of any act or omission of the teaching hospital, the college or versity that owns or operates the medical school, or the employees or agents of the college or university, while acting within the scope of duties pursuant to the affiliation agreement or other contract with a teaching hospital, is by commencement of an action pursuant to the provisions of this section. This notice requirement may be met by posting the notice in a place conspicuous to all persons. 3. This paragraph does not designate any employee providing contracted patient services in a teaching hospital as an employee or agent of the state for purposes of chapter 440. (11)(a) Providers or vendors, or any of their employees or agents, that have contractually agreed to act on behalf of the state as agents of the Department of Juvenile Justice to provide services to children in need of services, families in need of services, or juvenile offenders are, solely with respect to such services, agents of the state for purposes of this section while acting within the scope of and pursuant to guidelines established in the contract or by rule. A contract must provide for the indemnification of the state by the agent for any liabilities incurred up to the limits set out in this chapter. (b) This subsection does not designate a person who provides contracted services to juvenile offenders as an employee or agent of the state for purposes of chapter 440. (12)(a) A health care practitioner, as defined in s. 456.001(4), who has contractually agreed to act as an agent of a state university board of trustees to provide medical services to a student athlete for participation in or as a result of intercollegiate athletics, to include team practices, training, and competitions, shall be considered an agent of the respective state university board of trustees, for the purposes of this section, while acting within the scope of and rsuant to guidelines established in that contract. The contracts shall provide for the indemnification of the state by agent for any liabilities incurred up to the limits set out in this chapter. (b) This subsection shall not be construed as designating persons providing contracted health care services to athletes as employees or agents of a state university board of trustees for the purposes of chapter 440. (13) Laws allowing the state or its agencies or subdivisions to buy insurance are still in force and effect and are not restricted in any way by the terms of this act. 1 (14) Every claim against the state or one of its agencies or subdivisions for damages for a negligent or wrongful act or omission pursuant to this section shall be forever barred unless the civil action is commenced by filing a complaint in the court of appropriate jurisdiction within 4 years after such claim accrues; except that an action for contribution must be commenced within the limitations provided in s. 768.31(4), and an action for damages arising from medical malpractice or wrongful death must be commenced within the limitations for such actions in s. 95.11(4). (15) No action may be brought against the state or any of its agencies or subdivisions by anyone who unlawfully participates in a riot, unlawful assembly, public demonstration, mob violence, or civil disobedience if the daim arises out of such riot, unlawful assembly, public demonstration, mob violence, or civil disobedience. Nothing in this act shall abridge traditional immunities pertaining to statements made in court. (16)(a) The state and its agencies and subdivisions are authorized to be self - insured, to enter into risk management programs, or to purchase liability insurance for whatever coverage they may choose, or to have any combination thereof, in anticipation of any claim, judgment, and claims bill which they may be liable to pay pursuant to this section. Agencies or subdivisions, and sheriffs, that are subject to homogeneous risks may purchase insurance jointly a ik may join together as self- insurers to provide other means of protection against tort claims, any charter provisions or is to the contrary notwithstanding. (b) Claims files maintained by any risk management program administered by the state, its agencies, and its subdivisions are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution until termination of all litigation and settlement of all claims arising out of the same incident, although portions of the http: / /www.flsenate.gov/laws /statutes /2011/768.28 5/7 1/27/2015 Chapter 768 Section 28 - 2011 Florida Statutes - The Florida Senate claims files may remain exempt, as otherwise provided by law. Claims files records may be released to other governmental agencies upon written request and demonstration of need; such records held by the receiving agency remain confidential and exempt as provided for in this paragraph. 0 c) Portions of meetings and proceedings conducted pursuant to any risk management program administered by state, its agencies, or its subdivisions, which relate solely to the evaluation of claims filed with the risk management program or which relate solely to offers of compromise of claims filed with the risk management program are exempt from the provisions of s. 286.011 and s. 24(b), Art. I of the State Constitution. Until termination of all litigation and settlement of all claims arising out of the same incident, persons privy to discussions pertinent to the evaluation of a filed claim shall not be subject to subpoena in any administrative or civil proceeding with regard to the content of those discussions. (d) Minutes of the meetings and proceedings of any risk management program administered by the state, its agencies, or its subdivisions, which relate solely to the evaluation of claims filed with the risk management program or which relate solely to offers of compromise of claims filed with the risk management program are exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution until termination of all litigation and settlement of all claims arising out of the same incident. (17) This section, as amended by chapter 81 -317, Laws of Florida, shall apply only to causes of actions which accrue on or after October 1, 1981. (18) No provision of this section, or of any other section of the Florida Statutes, whether read separately or in conjunction with any other provision, shall be construed to waive the immunity of the state or any of its agencies from suit in federal court, as such immunity is guaranteed by the Eleventh Amendment to the Constitution of the United States, unless such waiver is explicitly and definitely stated to be a waiver of the immunity of the state and its agencies from suit in federal court. This subsection shall not be construed to mean that the state has at any time previously Waived, by implication, its immunity, or that of any of its agencies, from suit in federal court through any statute in i stence prior to June 24, 1984. (19) Neither the state nor any agency or subdivision of the state waives any defense of sovereign immunity, or increases the limits of its liability, upon entering into a contractual relationship with another agency or subdivision of the state. Such a contract must not contain any provision that requires one party to indemnify or insure the other party for the other party's negligence or to assume any liability for the other party's negligence. This does not preclude a party from requiring a nongovernmental entity to provide such indemnification or insurance. The restrictions of this subsection do not prevent a regional water supply authority from indemnifying and assuming the liabilities of its member governments for obligations arising from past acts or omissions at or with property acquired from a member government by the authority and arising from the acts or omissions of the authority in performing activities contemplated by an interlocal agreement. Such indemnification may not be considered to increase or otherwise waive the limits of liability to third -party claimants established by this section. (20) Every municipality, and any agency thereof, is authorized to undertake to indemnify those employees that are exposed to personal liability pursuant to the Clean Air Act Amendments of 1990, 42 U.S.C.A. ss. 7401 et seq., and all rules and regulations adopted to implement that act, for acts performed within the course and scope of their employment with the municipality or its agency, including but not limited to indemnification pertaining to the holding, transfer, or disposition of allowances allocated to the municipality's or its agency's electric generating units, and the monitoring, submission, certification, and compliance with permits, permit applications, records, compliance plans, and reports for those units, when such acts are performed within the course and scope of their employment with the municipality or its agency. The authority to indemnify under this section covers every act by an employee • ien such act is performed within the course and scope of her or his employment with the municipality or its agency, but does not cover any act of willful misconduct or any intentional or knowing violation of any law by the employee. The authority to indemnify under this section includes, but is not limited to, the authority to pay any fine and provide legal representation in any action. http: / /www.fl senate.gov/laws/statutes/2011/768.28 6/7 1 1/27/2015 Chapter 768 Section 28 - 2011 Florida Statutes - The Florida Senate History. -s. 1, ch. 73 -313; s. 1, ch. 74 -235; ss. 1, 2, 3, ch. 77 -86; s. 9, ch. 79 -139; s. 1, ch. 79 -253; s. 284, ch. 79 -400; s. 1, ch. 80 -271; ss. 1, 2, ch. 81- 317; s. 1, ch. 83 -44; s. 1, ch. 83 -257; s. 1, ch. 84 -29; s. 1, ch. 84 -335; s. 21, ch. 86 -183; s. 1, ch. 86 -184; s. 3, ch. 87 -134; s. 2, ch. 88 -173; ss. 55, 61, ch. 89- 300; s. 92, ch. 89 -360; s. 8, ch. 90 -192; s. 3, ch. 91 -209; s. 112, ch. 92 -33; ss. 2, 11, ch. 92 -278; s. 1, ch. 93 -89; s. 34, ch. 93 -129; s. 1, ch. 94 -76; s. 2, ch. � 147; s. 70, ch. 94 -209; s. 21, ch. 94 -321; s. 428, ch. 96 -406; s. 34, ch. 97 -93; s. 1809, ch. 97 -102; s. 4, ch. 98 -402; s. 289, ch. 99 -8; s. 9, ch. 2000 -155; s. ch. 2002 -20; s. 24, ch. 2002 -183; s. 2, ch. 2002 -401; s. 9, ch. 2003 -159; s. 1903, ch. 2003 -261; s. 1, ch. 2003 -290; s. 67, ch. 2003 -416; s. 1, ch. 2006- 234; s. 1, ch. 2010 -26; s. 1, ch. 2011 -113; s. 3, ch. 2011 -219. 1 Note.- Section 2, ch. 2011 -113, provides that "[t]his act shall take effect July 1, 2011, and applies to causes of action accruing on or after that date." 2 Note.- Section 4, ch. 2011 -219, provides that "[ t]his act shall take effect upon becoming a law, and applies to all claims accruing on or after that date." Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright © 2000- 2015 State of Florida. • • http://www.flsenate.gov/laws/statutes/2011/768.28 7/7 voluntarily, and with the assistance and advice of counsel as to the same, hereby waives any and all of its III rights, as well as those of its affiliates, subsidiaries, officers, directors, employees, and agents, and other legally - affiliated corporations and the entities specifically including the Applicant's principals and any entities owned or controlled by the Applicant's principals to the use of any additional Residential Detoxification beds within or on the Property, beyond the 24 beds granted in this Agreement. Applicant hereby acknowledges and agrees to the inclusion of this voluntary waiver in this Agreement. The parties acknowledge and agree that this waiver does not apply to the remainder of the uses in the Building. 7. City Property. Nothing herein shall be construed to grant Applicant any rights to any other property in the City other than the Property as described herein for any purposes. 8. Indemnification. Applicant agrees to indemnify and hold the City, its agents, servants, and employees, harmless from and against all claims, damage, costs and expenses, including attorneys' fees, arising out of Applicant's performance, or failure to perform, any of the promises, services, or functions required by the Agreement. There shall not be any third party beneficiaries to this Agreement and the only parties with standing to enforce the terms of this Agreement shall be the Applicant, the City, and their legal successors -in- interest. 9. Governing Law, Jurisdiction, and Venue. This Agreement has been executed and delivered in, and shall be interpreted, construed and enforced pursuant to and in accordance with the laws of the State of Florida. Applicant represents and agrees that it is familiar with all laws, ordinances, and regulations applicable to the services to be furnished under the Agreement. The Agreement shall be governed in all respects, whether as to validity, construction, capacity, performance, or otherwise by the laws of the state of Florida. Venue for any action arising from or related to the Agreement shall be Ill brought in a court of competent jurisdiction in Palm Beach County, Florida. 10. Assignment. The parties may assign their rights and obligations under this Agreement to any successor entity, to a wholly owned subsidiary, to any entity in which the party has an ownership interest, or to an entity which acquires substantially all of its assets. The Applicant shall provide written notice to the City Attorney of such a transfer of interests within thirty (30) days of such sale, assignment or transfer, it being acknowledged and understood that any sale, assignment or transfer shall require a new license be obtained from the State to use of the Property for a Residential Detoxification facility. 11. Waiver. Failure of a party to insist upon strict performance of any provision or condition of this Agreement, or to execute any right contained in this Agreement, shall not be construed as a waiver or relinquishment for the future of any such provision, condition, or right, but the same shall remain in full force and effect. 12. Enforcement of Agreement. Nothing herein shall otherwise be construed to limit a party's ability to exercise all judicial or administrative remedies available to it. Any sections of this Agreement which could be construed to limit or eliminate a party's liability or access to the remedies available at law or in equity shall have no application. City is a political subdivision of t e State of Florida and enjoys sovereign immunity. Nothing in the Agreement is intended, nor shall bestrued or interpreted, to waive or modify the immunities and limitations on liability provided for in Section 768.28, Florida Statutes (Exhibit 149, as may be amended from time to time, or any successor statute thereof. To the contrary, all terms and provisions contained in disagreement the Agreement, or any gr or dispute p concerning it, shall be construed or resolved so as to insure City of the limitation from liability provided to the State's subdivisions by state law. Should either party be required to seek judicial intervention to enforce the terms of this Agreement, the prevailing party shall be entitled to an award of all reasonable attorneys' fees • and costs, including any administrative, trial- level, appellate, or post judgment proceedings. Reasonable Accommodation Request Page 5 • 13. Resolution of All Matters/Release. Limitation of Agreement. Notwithstanding anything to the contrary contained herein, this Agreement is specifically limited to the Residential Detox Clinic and is not intended to limit or constrain the remaining uses on the Property as allowed under the SMU Zoning Clarification. 14. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e -mail delivery of a .PDF format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or .PDF signature page were an original thereof. SIGNATURE PAGE FOLLOWS • • Reasonable Accommodation Request Page 6 • IN WITNESS WHEREOF, the Parties have signed this Agreement on the date(s) set forth below. CITY OF BOYNTON BEACH BY: Lori LaVerriere City Manager APPROVED AS TO FORM: James A. Cherof, City Attorney WITNESSES: Lee Yaffe SLC Management, LLC • Manager STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this st.day of January, 2015, by LEE YAFFE, in his capacity as Managing Partner of SCL Management, LLC. NOTARY PUBLIC Personally Known OR Produced Identification Type of Identification Produced • Reasonable Accommodation Request Page 7