(a) General. (1) Any alteration to a place of public accommodation or a commercial facility, after January 26, 1992, shall be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.
(2) An alteration is deemed to be undertaken after January 26, 1992, if the physical alteration of the property begins after that date.
(b) Alteration. For the purposes of this part, an alteration is 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.
(1) Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.
(2) If existing elements, spaces, or common areas are altered, then each such altered element, space, or area shall comply with the applicable provisions of appendix A to this part.
(c) To the maximum extent feasible. The phrase “to the maximum extent feasible,” as used in this section, applies to the occasional case where the nature of an existing facility makes it virtually impossible to comply fully with applicable accessibility standards through a planned alteration. In these circumstances, the alteration shall provide the maximum physical accessibility feasible. Any altered features of the facility that can be made accessible shall be made accessible. If providing accessibility in conformance with this section to individuals with certain disabilities (e.g., those who use wheelchairs) would not be feasible, the facility shall be made accessible to persons with other types of disabilities (e.g., those who use crutches, those who have impaired vision or hearing, or those who have other impairments).
Notes of Decisions
Hubbard v. Rite Aid Corp., 433 F. Supp. 2d 1150 (S.D. Cal. 2006).
· cites it 4× “28 C.F.R. § 36.402 (a) provides that “any alteration to a place of public accommodation .”
Rodriguez v. Barrita, Inc., 10 F. Supp. 3d 1062 (N.D. Cal. 2014).
· cites it 4× “(Appendix A to 28 C.F.R. § 36.402 ). 13 Rodriguez argues that because the kitchen could not function and the restaurant could not serve its customers during the 2007 fire repairs, the temporary closure of La Victoria affected the usability of the restaurant, thereby constituting…”
The Regents of the Mercersburg Coll. v. Repub. Franklin Ins. Co., 458 F.3d 159 (3rd Cir. 2006).
· cites it 2× “” 28 C.F.R. § 36.402 (b)(1) (“Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and…”
Disabled in Action v. Se. Pennsylvania Transp. Auth., 635 F.3d 87 (3rd Cir. 2011).
· cites it 2× “§ 12183 and 28 C.F.R. § 36.402 (c)). Focusing on the language of the statute, it held that the ADA's "`maximum extent feasible' requirement does not ask the court to make a judgment involving costs and benefits.”
Parr v. L & L Drive-Inn Restaurant, 96 F. Supp. 2d 1065 (D. Haw. 2000).
· cites it 2× “” 28 C.F.R. § 36.402 (a)(1). To the "maximum extent feasible” only applies to "the occasional case where the nature of an existing facility makes it virtually impossible to comply” with accessibility standards.”
Rosa v. 600 Broadway Partners, LLC, 175 F. Supp. 3d 191 (S.D.N.Y. 2016).
“§ 12183 ; 28 C.F.R. § 36.402 ). “A determination that a facility has undergone ah ‘alteration’ has considerable significance with respect to the substance of the applicable legal standard.”
Disabled Americans for Equal Access, Inc. v. Ferries Del Caribe, Inc., 405 F.3d 60 (1st Cir. 2005).
“Pursuant to 28 C.F.R. § 36.402 (b)(1), "[alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, his *64 toric restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan…”
Gaylor v. Greenbriar of Dahlonega Shopping Ctr., Inc., 975 F. Supp. 2d 1374 (N.D. Ga. 2013).
· cites it 3× “§ 12183 (a)(2); 28 C.F.R. § 36.402 (c). *1391 In addition, new construction and alterations must comply with either the 1991 ADA Standards for Accessible Design (“1991 Standards”), 28 C.”
Scott Smith v. Golden China of Red Wing, Inc., 987 F.3d 1205 (8th Cir. 2021).
“Smith alternatively argued that Golden China had to meet the higher threshold of “maximum extent feasible” under 28 C.F.R. § 36.402 , which he asserts ignores the weighing of costs and benefits.”
Moeller v. Taco Bell Corp., 220 F.R.D. 604 (N.D. Cal. 2004).
“28 C.F.R. §§ 36.402 (b)(2); 36.406(a). In facilities built prior to January 26, 1993 and not altered since January 26, 1992, architectural barriers are required to be removed where it is “readily achievable” to do so.”
Norkunas v. Seahorse Nb, LLC, 444 F. App'x 412 (11th Cir. 2011).
“” 28 C.F.R. § 36.402 . 2 . Norkunas raises the issue of mootness, specifically that Seahorse should not win on the merits since it failed to meet the "formidable burden” required to show that the case was moot at trial.”
— 28 C.F.R. § 36.402(a) — 1 case
— 28 C.F.R. § 36.402(b)(2) — 1 case
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