Attorney General of Arkansas — Opinion
December 17, 2009
DUSTIN McDANIEL Attorney General
The Honorable Roy Ragland State Representative Post Office Box 610 Marshall, Arkansas 72650-0610
Dear Representative Ragland:
I am writing in response to your request for an opinion on whether Act 701 of 2009 violates the Americans with Disabilities Act.
Act 701 amended A.C.A. § 27-21-106 (Supp. 2009), which generally prohibits the operation of all-terrain vehicles (“ATVs”) on the public streets and highways of the State. The prohibition is subject, however, to certain exceptions, one of which was amended by Act 701 and is at issue in this opinion.
Prior to Act 701, subsection (a)(3) of the statute permitted certain persons to operate ATVs on the rights of way of highways within the State. Act 701 amended the statute to allow ATV operation by the designated persons on highway shoulders. Act 701, in other words, changed the law to move the ATV traffic in question from the right of way to the shoulder.
You state that many highways in rural parts of the State have limited or no shoulders, which requires disabled persons to “stay home or violate the law by driving on the actual highway.”
In my opinion, Act 701 does not, in and of itself, violate the Americans with Disabilities Act (the “ADA”). It is also my opinion, however, that in a particular case limited to its own individual facts the ADA might require the State to allow a disabled person to operate an ATV on a highway right of way.
Title II, Part A of the ADA, codified at 42 U.S.C. §§ 12131 to 12134, generally prohibits public entities from discriminating against disabled persons in the provision of services, programs, and activities. Courts have held that a public body is in compliance with the ADA if disabled persons have “meaningful access” to the public body’s services, programs, and activities. A public body may be
required to make reasonable modifications of its rules in order to give disabled people meaningful access to its services, programs, and activities.
In determining whether a particular modification is reasonable, or whether the modification will allow an individual with a disability to meet the essential eligibility requirements of the public service, program, or activity, the public entity can and must consider the modification’s impact on the public health and safety. It is clear, for example, that a public body is not required to modify its rules so as to issue a driver’s license to a person who is completely blind. Such a modification is not reasonable; stated another way, the modification does not allow a blind person to meet an essential eligibility requirement (adequate eyesight) that is fundamental to ensure safety on the roadways. Likewise, the court in Young held that a city was not required, due to safety concerns among other factors, to allow a disabled person unrestricted access to rights of way of the city streets in a golf cart. Young, 411 F. Supp.2d at 1313-1314.
It is clear that the reasonableness of proposed or requested modifications of law to accommodate access for disabled people is evaluated individually, on a case-by-case basis, having due regard to the nature and severity of the individual’s disability, the risks to public safety, and all other relevant facts. The requirement
for an individualized inquiry in each case is the primary reason I cannot generalize about Act 701’s status under the ADA.
I believe it is appropriate to regard A.C.A. § 27-21-106(a)(3), the statute at issue in this opinion, as a modification of the State’s general ban on ATV traffic, which modification was enacted to help disabled people gain access to the public highways. I believe it is also appropriate, then, to paraphrase your question, using the language of the ADA, as two separate questions as follows:
Is it always necessary, adequate, and reasonable for the State of Arkansas, in order to provide meaningful access to the public highways to each qualified individual with a disability within the State, to permit, as a modification of its ban on ATV traffic on the highways, each qualified person with a disability to operate an ATV on the right of way of the public highways?
Is it never necessary, adequate, and reasonable for the State of Arkansas, in order to provide meaningful access to the public highways to each qualified individual with a disability within the State, to permit, as a modification of its ban on ATV traffic on the highways, each qualified person with a disability to operate an ATV on the shoulder of the public highways?
Simply to state these questions is almost to answer them. The answer to both questions is “no.”
Many disabled people, of course, drive conventional automobiles with standard controls or hand controls on the State’s highways. These people already have meaningful access to the State’s highways. Accordingly, the State is not required to provide any modification of any rule with respect to such people. The State would not violate the ADA, with respect to any such person, even if it completely
repealed the exception contained in A.C.A. § 27-21-106(a)(3). Act 701 clearly does not violate the ADA with respect to such people.
With respect to a disabled person who cannot drive a conventional automobile, but can and does operate an ATV, is the exception contained in A.C.A. § 27-21-106(a)(3), either before or after Act 701, a reasonable modification that allows meaningful access to the public highways? The answer depends on the prevailing facts, including the existence and condition of a shoulder, the speed and volume of prevailing traffic where the ATV would be used, the visibility along the highway to be used, the speed at which the ATV can be operated safely, the availability of alternate routes, and any number of other factors whose relevance can be determined only in a particular case.
Accordingly, while Act 701, in and of itself, does not violate the ADA, one can imagine a fact situation in which the operation of an ATV on the highway right of way, or on the highway shoulder, would be a reasonable accommodation to afford a disabled person meaningful access to the public highways.
Assistant Attorney General J. M. Barker prepared the foregoing opinion, which I hereby approve.
DUSTIN McDANIEL Attorney General
A.C.A. § 27-21-106(a)(3) (Supp. 2009). I do not interpret your opinion request as being concerned with this addition and I do not consider it herein.
(transportation in general) and the cited opinion of the Attorney General of Ohio (transportation of oneself via motor vehicle, in particular), there can be no assurance of the scope with which a court would define any service, program, or activity found to be present. The defined scope of the service, program, or activity could affect the determination of reasonableness of a proposed modification of the rules relating thereto.
note 5. A person who has meaningful access to a public service, program, or activity is not, in the words of 42 U.S.C. § 12132, being “excluded from participation in or be[ing] denied the benefits of, . . . or be[ing] subjected to discrimination” with respect thereto. This “access” interpretation of the statute is confirmed by agency pronouncement. The Department of Justice has promulgated regulations under Title II, Part A of the ADA, including one that provides that “[a] public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.”28 CFR § 35.150(a) (emphasis added).