[vendtalk] FYI Rerun - Dept. Of Justice Official Clarifies Effect Of New ADA Rules On Vending Firms And Equipment

Sun Dec 30 00:45:07 UTC 2012

>From Vending Times 

Vending Times Issue: December 29, 2012

Issue Date: Vol. 52, No. 4, April 2012, Posted On: 3/23/2012.   Also
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Dept. Of Justice Official Clarifies Effect Of New ADA Rules On Vending Firms
And Equipment

Emily Jed
 <mailto:Emily at vendingtimes.net> Emily at vendingtimes.net 

CHICAGO -- Vending operators now must comply with changes to the regulations
mandated by the Americans with Disabilities Act, but many are not sure what
this compliance requires. The new rules went into effect on March 15, and
the National Automatic Merchandising Association <http://www.vending.org>
organized a webinar with a U.S. Department of Justice expert to help clarify
what the rules mean to the industry.

Barbara Elkin, a legal advisor for the DOJ, explained that many of the
standards in the new 2010 rules, applicable to vending machines, are
unchanged from the original regulations drafted under the Americans with
Disabilities Act of 1990. There are some consequential changes in the final
revisions to the regulations published by the DOJ on Sept. 15, 2010, which
took effect on March 15, 2011, with compliance required 12 months
thereafter. 

Putting industry members into the big picture, Elkin explained that the 1990
ADA extends civil rights protections to persons with disabilities similar to
those provided based on race, color, sex, national origin and religion. The
rules provide for equal opportunity for persons with disabilities in public
accommodations, employment, transportation, state and local government
services and telecommunications. 

The entities that must comply with the rules, defined as "Title II," include
state and local government programs as well as services provided by publicly
funded schools, colleges and hospitals and government agencies. But
compliance also is required of private, "Title III" entities, defined as
those that own, lease or operate facilities that serve the public. Examples
of such public accommodations include restaurants, retail stores, hotels,
movie theaters, private schools, convention centers and recreation
facilities. 

Elkin pointed out that vending machine manufacturers are not directly
covered by the ADA, because they are not state or local government services
or public accommodations. "If the machine is not compliant, the manufacturer
is not liable," she stated. However, ADA-covered facilities that offer
vending machine services must ensure that those services are accessible to
persons with disabilities. Thus, vending operators serving these sites are
likely to be required by clients to ensure their services are accessible,
when the client is required to comply with the rules. 

In some circumstances, compliance by Title II entities will require
structural changes to existing facilities. This would include modifications
that make the vending machine services accessible, as accessibility is
defined by the rules. 

"Program access obligation runs to the Title II entity, not the vending
machine manufacturer," Elkin repeated. 

For Title III entities, the ADA requires that public accommodations remove
architectural barriers in existing facilities when such modification is
"readily achievable," which is defined as "easily 'accomplishable' without
much difficulty or expense." 

Modification to a facility is considered not "readily achievable" if it
requires extensive restructuring, or substantial expense. Such a
determination is made on a case-by-case basis. 

Elkin emphasized that barrier removal obligation is the responsibility of
the public accommodation -- again, not the vending machine manufacturer. 

NEW REACH REQUIREMENTS

Among the biggest changes to the rules that can affect vending are the reach
requirements. The 1991 ADA rules require a forward reach range of 48"
maximum and 15" minimum. When the customer approaches the machine from the
side, those rules specify a 54" maximum and 9" minimum reach range. 

The 1991 ADA standards also require that the path in front of the machine
have enough room for a wheelchair to approach the machine and turn around,
with a minimum of 30" in front of the patron and 48" clearance back from the
machine. Additionally, the ground space around the machine must be "stable,
firm and slip-resistant." 

The 2010 standards maintain most of these specifications, but revise the
side reach range -- in a situation where clear floor or ground space allows
a parallel approach to an "element" -- to 48" maximum high reach and 15"
minimum low reach. 

The machine's operable parts must be placed within one or more of the reach
ranges. An "operable part" is defined as a component of an element that's
used to insert or withdraw objects, or to activate, deactivate or adjust the
element. Examples include buttons, buckets, switches, handles and doors.

Elkin explained that, when the element is a vending machine, product must be
delivered at a minimum height of 15" to all users, and that the entire
button or switch array must be within the reach range. "Within reach range
means just that -- not above or below," Elkin emphasized. "The bottom of the
vending bucket can drop lower and come up on a conveyor, but it must be
delivered at a minimum of 15 inches." 

The revised ADA rules also include "scoping" requirements, specifying that
at least one of each type of "depository, vending machine, change machine,
and fuel dispenser in covered locations" meet the new standards. 

"If you have a bank of similar machines, at least one of each type must meet
the standards," explained Elkin. "If you have three cold-drink machines in a
bank, only one needs to comply. If each machine is selling different
products, people with disabilities should have access to all of them." 

Machines on different floors or in different places on a floor are not
considered to be serving the same group of people. Therefore, at least one
of each type of machine in each area must meet the ADA requirements. In a
hotel, for instance, a vending bank on the first floor that's ADA compliant
doesn't cover all floors, Elkin instanced, since a person with a disability
shouldn't have the additional burden of coming to the lobby to use the
service if the machines on his or her floor aren't compliant. 

The technical requirements of the ADA standards, unchanged from 1991,
require that equipment be designed so that all users, with or without
disabilities, can use the same controls or receive product in the same way.
It cannot require extra steps for persons with disabilities. 

The rules for operable parts specify that they be operable with one hand,
and that they do not require tight grasping, pinching or twisting of the
wrist. The force required to activate operable parts can be no more than
five pounds. 

Elkin explained that the ADA standards apply to "fixed equipment," which can
include vending machines. When a public entity or a public accommodation
installs a new vending machine, or replaces or alters an existing one, then
if that machine is "fixed equipment," it must comply with the applicable ADA
accessibility standards. "Fixed" elements are covered under the rules
because they're considered to be part of the built environment, since they
are attached to the facility. "Fixed equipment" is defined as being built
into the structure of the building, attached to the wall or floor -- not
freestanding. 

One way to ascertain if equipment is fixed is to put it through the "upside
down" test, the speaker explained. If the building were turned upside down,
any machines that would remain in place rather than fall to the ground are
considered "fixed." 

A vending machine is not considered to be "fixed" simply because it's
plugged into the wall, Elkin continued. "And if machines in a line are
bolted together, but not affixed or attached to the building structure in
some manner, they are not fixed equipment," she added. 

One example of fixed equipment would be a coffee machine that is plumbed
into the building's water system, or attached by electrical conduit, rather
than simply plugged into an electrical outlet. In such a case, entities
covered under the ADA must provide new and altered machines that comply with
the 2010 standards. 

If a covered entity provides vending machines that are not fixed
(freestanding), it must still ensure that they are accessible to persons
with disabilities: an accessible route and clear floor space are still
required at installation by the both the 1991 and 2010 standards. 

As of March 15, vending machines in covered facilities must comply with the
2010 standards if there is a change to a building or facility that could
affect its usability. Such alterations include changes due to remodeling,
renovation, or changes or rearrangement of structural parts or elements. 

However, under safe harbor rules, existing fixed vending machines that
comply with the 1991 standards and are not altered or replaced are not
required to be modified to comply with the 2010 standards. The safe harbor
no longer applies if the covered entity replaces or alters the machines --
new or altered machines must comply with the current standards. 

Elkin concluded by answering the much-asked question of how the ADA rules
are enforced. 

"Technically, there aren't fines. But the DOJ can seek penalties for
noncompliance up to $55,000 for the first violation, against the covered
entity," explained the speaker. "Sometimes, it can just seek injunctive
relief." 

She emphasized that it is not the vending operator who is required to comply
with the regulations, but noted that the accounts they serve will rely on
their cooperation and assistance in providing accessible vending services,
in order to meet their ADA obligations. 

  _____  

Resources 

ADA information line (DOJ): (800) 514-0301 (v); (800) 514-0383 (TTY)

ADA website (DOJ): www.ada.gov

National Network of ADA Centers/Disability & Business Technical Assistance
Centers (formerly DBTACs): (800) 949-4232 (Voice and TTY)

  _____  

ADA Update At OneShow 

NAMA will hold a follow-up session on the new ADA requirements during the
OneShow in Las Vegas on Wednesday, April 25. It will be part of the
Government Affairs Symposium, which begins at 8:30 a.m., and will be
presented by Carolyn Doppelt-Gray of the Washington, DC-based law firm
Proskauer Rose LLP. She counsels clients in a range of industries, including
lodging, stadiums, retail, universities, restaurants and hospitals, on all
aspects of disability-related employment and accessibility requirements
under federal, state and local law. 

ADA vending machines

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