C.F.R. » Title 28 » CHAPTER I—DEPARTMENT OF JUSTICE › PART 36—NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC ACCOMMODATIONS AND IN COMMERCIAL FACILITIES › Subpart D—New Construction and Alterations

28 C.F.R. § 36.401

New construction

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(a) General. (1) Except as provided in paragraphs (b) and (c) of this section, discrimination for purposes of this part includes a failure to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible to and usable by individuals with disabilities.

(2) For purposes of this section, a facility is designed and constructed for first occupancy after January 26, 1993, only—

(i) If the last application for a building permit or permit extension for the facility is certified to be complete, by a State, County, or local government after January 26, 1992 (or, in those jurisdictions where the government does not certify completion of applications, if the last application for a building permit or permit extension for the facility is received by the State, County, or local government after January 26, 1992); and

(ii) If the first certificate of occupancy for the facility is issued after January 26, 1993.

(b) Commercial facilities located in private residences. (1) When a commercial facility is located in a private residence, the portion of the residence used exclusively as a residence is not covered by this subpart, but that portion used exclusively in the operation of the commercial facility or that portion used both for the commercial facility and for residential purposes is covered by the new construction and alterations requirements of this subpart.

(2) The portion of the residence covered under paragraph (b)(1) of this section extends to those elements used to enter the commercial facility, including the homeowner's front sidewalk, if any, the door or entryway, and hallways; and those portions of the residence, interior or exterior, available to or used by employees or visitors of the commercial facility, including restrooms.

(c) Exception for structural impracticability. (1) Full compliance with the requirements of this section is not required where an entity can demonstrate that it is structurally impracticable to meet the requirements. Full compliance will be considered structurally impracticable only in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features.

(2) If full compliance with this section would be structurally impracticable, compliance with this section is required to the extent that it is not structurally impracticable. In that case, any portion of the facility that can be made accessible shall be made accessible to the extent that it is not structurally impracticable.

(3) If providing accessibility in conformance with this section to individuals with certain disabilities (e.g., those who use wheelchairs) would be structurally impracticable, accessibility shall nonetheless be ensured to persons with other types of disabilities (e.g., those who use crutches or who have sight, hearing, or mental impairments) in accordance with this section.

(d) Elevator exemption. (1) For purposes of this paragraph (d)—

(i) Professional office of a health care provider means a location where a person or entity regulated by a State to provide professional services related to the physical or mental health of an individual makes such services available to the public. The facility housing the “professional office of a health care provider” only includes floor levels housing at least one health care provider, or any floor level designed or intended for use by at least one health care provider.

(ii) Shopping center or shopping mall means—

(A) A building housing five or more sales or rental establishments; or

(B) A series of buildings on a common site, either under common ownership or common control or developed either as one project or as a series of related projects, housing five or more sales or rental establishments. For purposes of this section, places of public accommodation of the types listed in paragraph (5) of the definition of “place of public accommodation” in section § 36.104 are considered sales or rental establishments. The facility housing a “shopping center or shopping mall” only includes floor levels housing at least one sales or rental establishment, or any floor level designed or intended for use by at least one sales or rental establishment.

(2) This section does not require the installation of an elevator in a facility that is less than three stories or has less than 3000 square feet per story, except with respect to any facility that houses one or more of the following:

(i) A shopping center or shopping mall, or a professional office of a health care provider.

(ii) A terminal, depot, or other station used for specified public transportation, or an airport passenger terminal. In such a facility, any area housing passenger services, including boarding and debarking, loading and unloading, baggage claim, dining facilities, and other common areas open to the public, must be on an accessible route from an accessible entrance.

(3) The elevator exemption set forth in this paragraph (d) does not obviate or limit, in any way the obligation to comply with the other accessibility requirements established in paragraph (a) of this section. For example, in a facility that houses a shopping center or shopping mall, or a professional office of a health care provider, the floors that are above or below an accessible ground floor and that do not house sales or rental establishments or a professional office of a health care provider, must meet the requirements of this section but for the elevator.

Notes of Decisions
Cited in 36 cases (14 in the last 5 years), 1995–2025 · leading case: Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co., 765 F.3d 1205 (10th Cir. 2014).
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Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co., 765 F.3d 1205 (10th Cir. 2014). · cites it 2× “C, at 914 (guidance to 28 C.F.R. § 36.401 ) (emphasis added). Unlike the case in Fortyune, we are not dealing with a public accommodation’s use of a design (e.”
Ass'n for Disabled Americans v. Key Largo Bay Beach, LLC, 407 F. Supp. 2d 1321 (S.D. Fla. 2005). · cites it 7× “Both parties agreed the controlling law was contained in 28 C.F.R. § 36.401 . 5 This regulation created a two-pronged test for determining whether a building is subject to the new construction rules.”
Indep. Living Resources v. Oregon Arena Corp., 982 F. Supp. 698 (D. Or. 1997). · cites it 2× “§ 12183 (a)(1); 28 CFR § 36.401 (a)(2). The principal tenants of the Rose Garden are the Portland Trail Blazers NBA basketball team and the Portland Winter Hawks of the Western Hockey League.”
Irma Allen v. Ollies Bargain Outlet Inc, 37 F.4th 890 (3rd Cir. 2022). “§ 12183 (a); 28 C.F.R. §§ 36.401 (a)(1), 402(a)(1). To be readily accessible, a facility must comply with the standards for accessible design.”
Kohler v. Islands Restaurants, LP, 280 F.R.D. 560 (S.D. Cal. 2012). “” 28 C.F.R. § 36.401 (c). The language of the regulation does not limit its application to construction over water or marshlands.”
Gaylor v. Greenbriar of Dahlonega Shopping Ctr., Inc., 975 F. Supp. 2d 1374 (N.D. Ga. 2013). · cites it 3× “§ 12183 (a); 28 C.F.R. §§ 36.401 (a) & 36.402(a). New construction need not be readily accessible if an owner can demonstrate that it is “structurally impracticable.”
United States v. Hoyts Cinemas Corp., 380 F.3d 558 (1st Cir. 2004). “28 C.F.R. §§ 36.401 -.402, 36.406 (2003).”
Massachusetts v. E Trade Access, Inc., 464 F. Supp. 2d 52 (D. Mass. 2006). · cites it 2× “28 C.F.R. § 36.401 , App. A, 4.34.5 (1991).”
Hubbard v. Twin Oaks Health & Rehab. Ctr., 408 F. Supp. 2d 923 (E.D. Cal. 2004). “See 28 CFR § 36.401 , 28 CFR § 36.406 . The second category of regulations concerns the accessibility requirements imposed on public accommodations altered after January 26, 1992.”
Moore v. Dollar Tree Stores Inc., 85 F. Supp. 3d 1176 (E.D. Cal. 2015). · cites it 2× “28 C.F.R. §§ 36.401 , 36.406. The ADA defines an alteration as “a change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof.”
Paralyzed Vets. of Am. v. Ellerbe Becket Architects & Engineers, P.C., 950 F. Supp. 393 (D.D.C. 1996). “See also 28 C.F.R. § 36.401 (c) (structural impracticability means “those rare circumstances where the unique characteristics of the terrain prevent the incorporation of accessibility features.”
United States v. Nat'l Amusements, Inc., 180 F. Supp. 2d 251 (D. Mass. 2001). “See 28 C.F.R. § 36.401 (a). B. The Regulatory Framework of the ADA Congress entrusted the Attorney General to “issue regulations .”
Show all 36 citing cases →
— 28 C.F.R. § 36.401(a) — 2 cases
Betancourt-Colon v. Arcos Dorados Puerto Rico, LLC (D.P.R. 2024).
Eidler v. Brookdale Senior Living, Inc. (N.D. Cal. 2024).
— 28 C.F.R. § 36.401(a)(2) — 1 case
Betancourt-Colon v. Supermercados Maximo, Inc. (D.P.R. 2024).
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