From Darkness To Light

20 Apr 2020

E-bikers: Got a mobility disability? ADA has a section you must read on mobility devices

Posted by Adam Howell

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People with a mobility disability have a legal option for defending themselves when riding e-bikes on Durango’s existing natural surface trails.

The ADA protects those with a disability.

The ADA protects the use of mobility devices on areas open to pedestrian use.

Specifically, disabled e-bikers on natural surface trails should familiarize themselves with a section of the Americans with Disabilities Act (ADA).

Within the ADA is the Other Power-Driven Mobility Devices (OPDMDs) section. Particularly, the section permits you to use e-bikes in areas open to pedestrian use. This does not mean that local municipalities will honor your interpretation of this law, 28 CFR § 35.137(b)(2) of the Americans with Disabilities Act.

Here is the entire section, as copied from the Americans with Disabilities Act Title II Regulations:

§ 35.137 Mobility devices for people with disability.

(a) Use of wheelchairs and manually-powered mobility aids. A public entity shall permit individuals with mobility disabilities to use wheelchairs and manually-powered mobility aids, such as walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility disabilities in any areas open to pedestrian use.

(b)(1) Use of other power-driven mobility devices. A public entity shall make reasonable modifications in its policies, practices, or procedures to permit the use of other power-driven mobility devices by individuals with mobility disabilities, unless the public entity can demonstrate that the class of other power-driven mobility devices cannot be operated in accordance with legitimate safety requirements that the public entity has adopted pursuant to § 35.130(h).

(2) Assessment factors.

In determining whether a particular other power-driven mobility device can be allowed in a specific facility as a reasonable modification under paragraph (b)(1) of this section, a public entity shall consider—(i) The type, size, weight, dimensions, and speed of the device;
(ii) The facility’s volume of pedestrian traffic (which may vary at different times of the day, week, month, or year);
(iii) The facility’s design and operational characteristics (e.g., whether its service, program, or activity is conducted indoors, its square footage, the density and placement of stationary devices, and the availability of storage for the device, if requested by the user);

(iv) Whether legitimate safety requirements can be established to permit the safe operation of the other power-driven mobility device in the specific facility; and
(v) Whether the use of the other power-driven mobility device creates a substantial risk of serious harm to the immediate environment or natural or cultural resources, or poses a conflict with Federal land management laws and regulations.

(c)(1) Inquiry about disability.

A public entity shall not ask an individual using a wheelchair or other power-driven mobility device questions about the nature and extent of the individual’s disability.

(2) Inquiry into use of other power-driven mobility device. A public entity may ask a person using an other power-driven mobility device to provide a credible assurance that the mobility device is required because of the person’s disability.

A public entity that permits the use of an other power-driven mobility device by an individual with a mobility disability shall accept the presentation of a valid, State-issued, disability parking placard or card, or other State-issued proof of disability as a credible assurance that the use of the other power-driven mobility device is for the individual’s mobility disability.

In lieu of a valid, State-issued disability parking placard or card, or State-issued proof of disability, a public entity shall accept as a credible assurance a verbal representation, not contradicted by observable fact, that the other power-driven mobility device is being used for a mobility disability.

A “valid” disability placard or card is one that is presented by the individual to whom it was issued and is otherwise in compliance with the State of issuance’s requirements for disability placards or cards.

Restricting those with a disability=discrimination

In other words, you do not have to tell public officials anything about your disability. You also have the right to remain silent (5th Amendment to the Bill of Rights).

At the same time, explaining that your e-bike is necessary because of your disability is helpful.

So far, it appears that Durango’s Ordinance 0-2018-25 makes an exception for the use of some vehicles by disabled persons. It’s to allow people to gain access to city owned or managed public property under the provisions of the ADA.

Later, if you feel that your rights have been violated, visit the City’s ADA website and fill out a complaint form.

Adam Howell is a writer who is on the city of Durango’s Natural Lands Preservation Advisory Board. His reporting and commentary does not reflect or represent the views of the Board or the municipal government. He can be reached by clicking on this link to the contact page.

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