S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4093

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              March 8, 2013
                               ___________

Introduced  by  Sen.  MARCELLINO  -- read twice and ordered printed, and
  when printed to be committed to the Committee  on  Investigations  and
  Government Operations

AN  ACT  to  amend  the  executive law, in relation to the definition of
  "place of public accommodation, resort or amusement" for the  purposes
  of the human rights law

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 9 of section  292  of  the  executive  law,  as
amended  by  chapter  262  of  the  laws  of 1994, is amended to read as
follows:
  9. The term "place of public accommodation, resort or amusement" shall
include, REGARDLESS OF WHETHER THE OWNER OR OPERATOR OF SUCH PLACE IS  A
STATE  OR  LOCAL  GOVERNMENT  ENTITY  OR A PRIVATE INDIVIDUAL OR ENTITY,
except as hereinafter specified, all places included in the  meaning  of
such  terms  as:  inns,  taverns,  road  houses, hotels, motels, whether
conducted for the entertainment of transient guests or for the  accommo-
dation  of  those seeking health, recreation or rest, or restaurants, or
eating houses, or any place where food is sold for  consumption  on  the
premises;  buffets,  saloons,  barrooms, or any store, park or enclosure
where spirituous or malt liquors are sold; ice  cream  parlors,  confec-
tionaries, soda fountains, and all stores where ice cream, ice and fruit
preparations  or  their  derivatives, or where beverages of any kind are
retailed for consumption on the premises; wholesale  and  retail  stores
and  establishments  dealing with goods or services of any kind, dispen-
saries, clinics, hospitals, bath-houses, swimming pools,  laundries  and
all  other  cleaning establishments, barber shops, beauty parlors, thea-
tres, motion picture houses, airdromes, roof gardens, music halls,  race
courses,  skating  rinks, amusement and recreation parks, trailer camps,
resort camps, fairs, bowling alleys, golf courses, gymnasiums,  shooting
galleries,  billiard  and  pool parlors; garages, all public conveyances

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05065-01-3
              

S. 4093                             2

operated on land or water or in the air, as well  as  the  stations  and
terminals  thereof;  travel  or  tour  advisory  services,  agencies  or
bureaus; public halls [and], PUBLIC ROOMS,  public  elevators,  AND  ANY
PUBLIC  AREAS  of  [buildings  and  structures  occupied  by two or more
tenants, or by the owner and one or more tenants] ANY BUILDING OR STRUC-
TURE.  Such term shall not include  [public  libraries,]  kindergartens,
primary  and  secondary  schools,  high schools, academies, colleges and
universities, extension courses, and all educational institutions  under
the  supervision  of  the  regents  of  the  state of New York; any such
[public library,] kindergarten, primary and secondary  school,  academy,
college,  university,  professional  school,  extension  course or other
education facility, supported in whole or in part by public funds or  by
contributions  solicited  from  the  general public; or any institution,
club or place of accommodation which proves that it  is  in  its  nature
distinctly  private.  In no event shall an institution, club or place of
accommodation be considered in its nature distinctly private if  it  has
more  than  one hundred members, provides regular meal service and regu-
larly receives  payment  for  dues,  fees,  use  of  space,  facilities,
services, meals or beverages directly or indirectly from or on behalf of
a  nonmember  for  the furtherance of trade or business. An institution,
club, or place of accommodation which is not deemed  distinctly  private
pursuant  to  this  subdivision  may  nevertheless  apply such selective
criteria as it chooses in the  use  of  its  facilities,  in  evaluating
applicants  for membership and in the conduct of its activities, so long
as such selective criteria do not  constitute  discriminatory  practices
under  this  article  or any other provision of law. For the purposes of
this section, a corporation incorporated under the benevolent orders law
or described in the benevolent orders law but formed under any other law
of this state or a religious corporation incorporated under  the  educa-
tion  law or the religious corporations law shall be deemed to be in its
nature distinctly private.
  No institution, club, organization or  place  of  accommodation  which
sponsors or conducts any amateur athletic contest or sparring exhibition
and  advertises  or bills such contest or exhibition as a New York state
championship contest or uses the words "New York state" in its announce-
ments shall be deemed a private exhibition within the  meaning  of  this
section.
  S  2.  Paragraphs  (c)  and (d) of subdivision 2 of section 296 of the
executive law, as added by chapter 394 of the laws of 2007, are  amended
to read as follows:
  (c)  For the purposes of paragraph (a) of this subdivision, "discrimi-
natory practice" includes:
  (i) a refusal to make reasonable modifications in policies, practices,
or procedures, when such modifications are necessary to  afford  facili-
ties, privileges, advantages or accommodations to individuals with disa-
bilities,  unless such person can demonstrate that making such modifica-
tions  would  fundamentally  alter  the  nature  of   such   facilities,
privileges, advantages or accommodations;
  (ii)  a  refusal to take such steps as may be necessary to ensure that
no individual with a disability is excluded or denied  services  because
of  the  absence  of auxiliary aids and services, unless such person can
demonstrate that taking such steps would fundamentally alter the  nature
of  the facility, privilege, advantage or accommodation being offered or
would result in an undue burden;
  (iii) a refusal to remove architectural  barriers,  and  communication
barriers  that  are  structural  in  nature, in existing facilities, and

S. 4093                             3

transportation barriers in existing vehicles  and  rail  passenger  cars
used  by  an  establishment  for transporting individuals (not including
barriers that can only be removed through the retrofitting  of  vehicles
or  rail  passenger  cars  by  the  installation of a hydraulic or other
lift), where such removal is readily achievable; [and]
  (iv) WHERE SUCH PERSON IS  A  LOCAL  OR  STATE  GOVERNMENT  ENTITY,  A
REFUSAL  TO  REMOVE  ARCHITECTURAL  BARRIERS, AND COMMUNICATION BARRIERS
THAT ARE STRUCTURAL IN NATURE, IN EXISTING FACILITIES,  AND  TRANSPORTA-
TION  BARRIERS  IN  EXISTING VEHICLES AND RAIL PASSENGER CARS USED BY AN
ESTABLISHMENT FOR TRANSPORTING INDIVIDUALS (NOT INCLUDING BARRIERS  THAT
CAN ONLY BE REMOVED THROUGH THE RETROFITTING OF VEHICLES OR RAIL PASSEN-
GER  CARS  BY THE INSTALLATION OF A HYDRAULIC OR OTHER LIFT), WHERE SUCH
REMOVAL DOES NOT CONSTITUTE AN UNDUE BURDEN;  EXCEPT  AS  SET  FORTH  IN
PARAGRAPH (E) OF THIS SUBDIVISION; NOTHING IN THIS SECTION WOULD REQUIRE
A  PUBLIC  ENTITY  TO:  NECESSARILY MAKE EACH OF ITS EXISTING FACILITIES
ACCESSIBLE TO AND USABLE BY  INDIVIDUALS  WITH  DISABILITIES;  TAKE  ANY
ACTION  THAT WOULD THREATEN OR DESTROY THE HISTORICAL SIGNIFICANCE OF AN
HISTORIC PROPERTY; OR TO MAKE STRUCTURAL CHANGES IN EXISTING  FACILITIES
WHERE  OTHER  METHODS  ARE  EFFECTIVE  IN ACHIEVING COMPLIANCE WITH THIS
SECTION;
  (V) where such person can demonstrate that the removal  of  a  barrier
under  subparagraph (iii) of this paragraph is not readily achievable, a
failure to make such  facilities,  privileges,  advantages  or  accommo-
dations available through alternative methods if such methods are readi-
ly achievable.
  (d) For the purposes of this subdivision:
  (i)  "Readily  achievable"  means easily accomplishable and able to be
carried out without much difficulty or expense. In  determining  whether
an action is readily achievable, factors to be considered include:
  (A) the nature and cost of the action needed under this subdivision;
  (B)  the  overall  financial  resources  of the facility or facilities
involved in the action; the number of persons employed at such facility;
the effect on expenses and resources or the  impact  otherwise  of  such
action upon the operation of the facility;
  (C)  the  overall  financial resources of the place of public accommo-
dation, resort or amusement; the overall size of the business of such  a
place  with respect to the number of its employees; the number, type and
location of its facilities; and
  (D) the type of operation or operations of the place of public  accom-
modation,  resort or amusement, including the composition, structure and
functions of the workforce of such place; the  geographic  separateness,
administrative  or  fiscal relationship of the facility or facilities in
question to such place.
  (ii) "Auxiliary aids and services" include:
  (A) qualified interpreters or other effective methods of making aural-
ly delivered materials available to  individuals  with  hearing  impair-
ments;
  (B)  qualified  readers,  taped  texts  or  other effective methods of
making visually delivered materials available to individuals with visual
impairments;
  (C) acquisition or modification of equipment or devices; and
  (D) other similar services and actions.
  (iii) "Undue burden"  means  significant  difficulty  or  expense.  In
determining  whether  an action would result in an undue burden, factors
to be considered shall include:
  (A) The nature and cost of the action needed under this article;

S. 4093                             4

  (B) The overall financial resources of the site or sites  involved  in
the  action;  the  number of persons employed at the site; the effect on
expenses and resources; legitimate safety requirements that  are  neces-
sary  for  safe  operation,  including crime prevention measures; or the
impact otherwise of the action upon the operation of the site;
  (C)  The  geographic  separateness,  and  the administrative or fiscal
relationship of the site or sites in question to any parent  corporation
or entity;
  (D)  If  applicable,  the  overall  financial  resources of any parent
corporation or entity; the overall size of  the  parent  corporation  or
entity  with  respect  to the number of its employees; the number, type,
and location of its facilities; and
  (E) If applicable, the type of operation or operations of  any  parent
corporation  or  entity, including the composition, structure, and func-
tions of the workforce of the parent corporation or entity.
  S 3. This act shall take effect on the one hundred twentieth day after
it shall have become a law.