Community Insider Summer 2017 - Page 28

TO BE OR NOT TO BE: WHETHER TO INVITE THE PUBLIC INTO THE COMMUNITY BY: JONATHAN D. MASSIE, ESQ. “To be, or not to be” is the opening phrase of a soliloquy spoken by Prince Hamlet in the so-called “nunnery scene” of William Shakespeare’s play Hamlet. Act III, Scene I. The question for Hamlet was whether to continue to exist or not – whether it was nobler to suffer the slings and arrows of an unbearable situation, or to declare war on the sea of troubles that afflict oneself, and by opposing them, end his life. What does Hamlet’s existential analysis of his life have to do with common interest developments? The Fair Housing Amendment Act of 1988 (FHAA) found at 42 USC §§ 3601-3631, prohibits discrimination in housing based on an individual’s disability. All common interest developments, or HOAs, are subject to FHAA laws requiring the HOA to make reasonable accommodations in its policies and practices to persons with disabilities to allow the disabled owner to fully use their properties. See 42 USC §3604(f) (3) (b). A similar law that also prevents discrimination against people with disabilities is the Americans with Disabilities Act of 1990 (ADA). The ADA, found at 42 USC §§ 12101 – 12213, is a federal law that protects individuals with disabilities against discrimination by various entities or groups such as employers (Title I) and those providers of places of “public accommodations” (Title III). To be considered a public accommodation, an entity must be private and it must own, lease, lease to, or operate a place of public accommodation. A place of public accommodation is a facility whose operations affect commerce and fall within at least one of twelve specific categories. For example, places of lodging; establishments serving food or drink; places of exhibition or entertainment; places of public gathering; sales or rental establishments; service establishments; public transportation terminals, depots, or stations; places of public display or collection; places of recreation; places of education; social service center establishments and places of exercise or recreation. Put our experience and responsiveness to work for you. HOA Banking Solutions Proud recipient of CAI-San Diego’s 2012 “Business Partner of the Year” and consecutive 2009-2013 SDCAA “Mark of Excellence” Awards. Call us today! 28 | SAN DIEGO COMMUNITY INSIDER | Although the ADA Title III does not apply to strictly residential facilities, it covers places of public accommodation within residential facilities. Thus, areas within multifamily residential facilities that qualify as places of public accommodation are covered by the ADA if use of the areas is not limited exclusively to owners, resi dents, and their guests. The ADA Title III Technical Assistance Manual Covering Public Accommodations and Commercial Facilities provides the following example of use that does not qualify as a public accommodation: “A residential condominium association maintains a longstanding policy of restricting use of its party room to owners, residents, and their guests. Consistent with that policy, it refuses to rent the room to local businesses and Cash Management Solutions Homeowner Association Loans Lockbox Processing Capabilities Online Access and Research Multiple Payment Options Susan Abubo AVP/HOA Department Branch Operations Manager (760) 432-1332 | sabubo@pacificwesternbank.com 900 Canterbury Place, Ste. 101, Escondido, CA 92025 License No. PPO 15264 SPRING 2017 WWW.CAI-SD.ORG pacificwesternbank.com