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Most of the commenters who addressed this issue supported the
approach taken by the Department; but a few commenters suggested that
areas not open to the general public or those used exclusively by
employees should be excluded from the definition of primary function.
The preamble to the proposed rule noted that the Department considered
an alternative approach to the definition of primary function, under
which a primary function of a commercial facility would be defined as a
major activity for which the facility was intended, while a primary
function of a place of public accommodation would be defined as an
activity which involves providing significant goods, services,
facilities, privileges, advantages, or accommodations. However, the
Department concluded that, although portions of the legislative history
of the ADA support this alternative, the better view is that the
language now contained in Sec. 36.403(b) most accurately reflects
congressional intent. No commenter made a persuasive argument that the
Department's interpretation of the legislative history is incorrect.
(Just notes)
