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. § 36.403

Alterations: Path of travel

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(a) General. (1) An alteration that affects or could affect the usability of or access to an area of a facility that contains a primary function shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered area and the restrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, unless the cost and scope of such alterations is disproportionate to the cost of the overall alteration.

(2) If a private entity has constructed or altered required elements of a path of travel at a place of public accommodation or commercial facility in accordance with the specifications in the 1991 Standards, the private entity is not required to retrofit such elements to reflect the incremental changes in the 2010 Standards solely because of an alteration to a primary function area served by that path of travel.

(b) Primary function. A “primary function” is a major activity for which the facility is intended. Areas that contain a primary function include, but are not limited to, the customer services lobby of a bank, the dining area of a cafeteria, the meeting rooms in a conference center, as well as offices and other work areas in which the activities of the public accommodation or other private entity using the facility are carried out. Mechanical rooms, boiler rooms, supply storage rooms, employee lounges or locker rooms, janitorial closets, entrances, corridors, and restrooms are not areas containing a primary function.

(c) Alterations to an area containing a primary function. (1) Alterations that affect the usability of or access to an area containing a primary function include, but are not limited to—

(i) Remodeling merchandise display areas or employee work areas in a department store;

(ii) Replacing an inaccessible floor surface in the customer service or employee work areas of a bank;

(iii) Redesigning the assembly line area of a factory; or

(iv) Installing a computer center in an accounting firm.

(2) For the purposes of this section, alterations to windows, hardware, controls, electrical outlets, and signage shall not be deemed to be alterations that affect the usability of or access to an area containing a primary function.

(d) Landlord/tenant: If a tenant is making alterations as defined in § 36.402 that would trigger the requirements of this section, those alterations by the tenant in areas that only the tenant occupies do not trigger a path of travel obligation upon the landlord with respect to areas of the facility under the landlord's authority, if those areas are not otherwise being altered.

(e) Path of travel. (1) A “path of travel” includes a continuous, unobstructed way of pedestrian passage by means of which the altered area may be approached, entered, and exited, and which connects the altered area with an exterior approach (including sidewalks, streets, and parking areas), an entrance to the facility, and other parts of the facility.

(2) An accessible path of travel may consist of walks and sidewalks, curb ramps and other interior or exterior pedestrian ramps; clear floor paths through lobbies, corridors, rooms, and other improved areas; parking access aisles; elevators and lifts; or a combination of these elements.

(3) For the purposes of this part, the term “path of travel” also includes the restrooms, telephones, and drinking fountains serving the altered area.

(f) Disproportionality. (1) Alterations made to provide an accessible path of travel to the altered area will be deemed disproportionate to the overall alteration when the cost exceeds 20% of the cost of the alteration to the primary function area.

(2) Costs that may be counted as expenditures required to provide an accessible path of travel may include:

(i) Costs associated with providing an accessible entrance and an accessible route to the altered area, for example, the cost of widening doorways or installing ramps;

(ii) Costs associated with making restrooms accessible, such as installing grab bars, enlarging toilet stalls, insulating pipes, or installing accessible faucet controls;

(iii) Costs associated with providing accessible telephones, such a relocating the telephone to an accessible height, installing amplification devices, or installing a text telephone (TTY);

(iv) Costs associated with relocating an inaccessible drinking fountain.

(g) Duty to provide accessible features in the event of disproportionality. (1) When the cost of alterations necessary to make the path of travel to the altered area fully accessible is disproportionate to the cost of the overall alteration, the path of travel shall be made accessible to the extent that it can be made accessible without incurring disproportionate costs.

(2) In choosing which accessible elements to provide, priority should be given to those elements that will provide the greatest access, in the following order:

(i) An accessible entrance;

(ii) An accessible route to the altered area;

(iii) At least one accessible restroom for each sex or a single unisex restroom;

(iv) Accessible telephones;

(v) Accessible drinking fountains; and

(vi) When possible, additional accessible elements such as parking, storage, and alarms.

(h) Series of smaller alterations. (1) The obligation to provide an accessible path of travel may not be evaded by performing a series of small alterations to the area served by a single path of travel if those alterations could have been performed as a single undertaking.

(2)(i) If an area containing a primary function has been altered without providing an accessible path of travel to that area, and subsequent alterations of that area, or a different area on the same path of travel, are undertaken within three years of the original alteration, the total cost of alterations to the primary function areas on that path of travel during the preceding three year period shall be considered in determining whether the cost of making that path of travel accessible is disproportionate.

(ii) Only alterations undertaken after January 26, 1992, shall be considered in determining if the cost of providing an accessible path of travel is disproportionate to the overall cost of the alterations.

[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by AG Order No. 3181-2010, 75 FR 56256, Sept. 15, 2010]
Notes of Decisions
Cited in 21 cases (3 in the last 5 years), 1993–2024 · leading case: Roberts v. Royal Atl. Corp., 542 F.3d 363 (2d Cir. 2008).
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Roberts v. Royal Atl. Corp., 542 F.3d 363 (2d Cir. 2008). · cites it 6× “f a covered entity undertakes an alteration that affects or could affect usability of or access to an area of the facility containing a primary function, the entity must also make the alteration so that, “to the maximum extent feasible,” the path of travel to the altered area…”
Speciner v. Nationsbank, N.A., 215 F. Supp. 2d 622 (D. Maryland 2002). · cites it 9× “28 C.F.R. § 36.403 (b). When alterations are made to a primary function area, the operator must “make the alterations in such a manner that, to the maximum extent feasible, the path of travel to the altered area .”
Kohler v. Bed Bath & Beyond of California, LLC, 780 F.3d 1260 (9th Cir. 2015). · cites it 3× “4 *1266 28 C.F.R. § 36.403 . This reading is further supported by the DOJ’s formal interpretation of the regulation in its Technical Assistance Manual, which includes the following scenario: What if a tenant remodels his store in a manner that would trigger the path of travel…”
Thomas v. Ariel West, 242 F. Supp. 3d 293 (S.D.N.Y. 2017). · cites it 2× “” 28 C.F.R. § 36.403 (b). It is indisputable that this definition covers merchandise display areas and dressing rooms in a clothing store, and the DOJ’s regulations specifically list “[r]e-modeling merchandise display areas or employee work areas in a department store” as an…”
Campbell v. Speedway LLC, 225 F. Supp. 3d 663 (E.D. Mich. 2016). · cites it 10× “) Defendant also argues that Plaintiff cannot make a claim under the Americans with Disabilities Act (“ADA”), 28 CFR § 36.403 , because the drafters did not intend for the statute to focus on safety standards for walkways and the statute does not provide for a cause of action…”
Coalition of Montanans Concerned with Disabilities, Inc. v. Gallatin Airport Auth., 957 F. Supp. 1166 (D. Mont. 1997). · cites it 5× “28 C.F.R. § 36.403 (e). Nevertheless, I am inclined to follow the Justice Department’s interpretation.”
Rodriguez v. Barrita, Inc., 10 F. Supp. 3d 1062 (N.D. Cal. 2014). “See 28 C.F.R. § 36.403 . . Neither the ADA nor the ADAAG maltes clear which party has the burden to prove that an "alteration” did or did not occur, nor has the Ninth Circuit clarified the issue.”
Kinney v. Yerusalim, 812 F. Supp. 547 (E.D. Pa. 1993). “28 C.F.R. § 36.403 . However, the general “alterations” provisions of Title III contain no such defense.”
Meyers v. City of Jacksonville, 754 So. 2d 198 (Fla. 1st DCA 2000). “" 28 C.F.R. § 36.403 (b) (1991). Appellants alleged that the City purchased the building in 1994, substantially renovated it, and reopened the building to the public in 1996 as a place to pay fines for traffic violations.”
Iverson v. Comsage, Inc., 132 F. Supp. 2d 52 (D. Mass. 2001). “According to 28 C.F.R. § 36.403 (0, "[ajlter-ations made to provide an accessible path of travel to the altered area will be deemed disproportionate to the overall alteration when the cost exceeds 20% of the cost of the alteration to the primary function area.”
Venetian Casino Resort, L.L.C. v. Local Jt. Exec. Bd. of Las Vegas, 257 F.3d 937 (9th Cir. 2001). “” 28 C.F.R. § 36.403 (e)(1). Therefore, this language should be read as indicative of the State’s intention to treat Venetian’s private sidewalk no differently than any other private sidewalk fronting a commercial establishment.”
Ritter v. Clinton House Restaurant, 64 F. Supp. 2d 374 (D.N.J. 1999). · cites it 2× “Also, plaintiff points to a portion of the federal regulations under ADA, arguing that those require modification to make the entrance accessible before interior modifications are made, referring to 28 C.F.R. § 36.403 . (Brady Test.) We have examined that regulation and it…”
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