We recently received 2 questions that raised related issues, so we've merged them in this "Ask the Lawyer Meeting Room Question Mash-Up" RAQ.
Here is question 1:
"Students frequently meet in the library with tutors. This typically happens in the open areas of the library but also in a few small study rooms. These rooms are available to everyone, restricted only by number of people and available for 1 hour on a first come, first served basis. Individuals and groups may stay longer in a particular room if no one else is waiting for the space. Rooms are not available to book ahead of time.
Some of the tutors are likely charging for their time, though many are not (studying with friends or similar). We have always considered the library's service to the students as paramount over any benefit to the tutor but is this an allowable use of library space due to the possible inurement and aid to an individual?"
Here is question 2:
"I've just finished viewing the first amendment audit webinar.... Such a great resource. Thank you!! I was wondering about meeting spaces and the language we can use to protect patrons in areas that they have been reserved for private meetings (scouting group in the meeting room, deposition in a tutoring room, tutoring, tele-med sessions, supervised visits etc.)"
These meeting-room related submissions to "Ask the Lawyer" were inspired by two separate resources: the first one, an "Ask the Lawyer" RAQ on meeting room policies, and the second, an ESLN-sponsored training.
If you've read the questions, you know they will not have the same answer. So, as recent viewers of the new Spider-Man movie may have asked,[1] why the mash-up?
Because the answers share the same foundation: the rules around community access to space.
The first question is based on a concern we addressed in the RAQ on meeting room policies. Here is the part that inspired the question:
"No, there is no legal requirement for public libraries to limit access to space to non-profit organizations.
However, there IS a requirement for any "charitable" entity[7] in New York to not allow any of its assets to “inure” to any one individual, while non-association libraries have to follow an even stricter rule against "aid" to individual people or businesses as set by the NY Constitution (this is why a town library can't use funds to throw a big "bon voyage" party to celebrate a retiring employee, but its not-for-profit "Friends" can)."
The second question is asking for model language, within the framework of what is allowed, to protect the rights of those using the rooms.
So, like a webslinger arcing majestically from issue to issue, let's do this.
The First Question
Is a person using free resources at the library for personal gain violating the law against "inurements"? Most likely: no.
The resources at public libraries can often serve as the first, critical building blocks of a small business. A person wanting to research an idea, create a 3-D printing of a product prototype, select neutral ground to meet a potential investor, or offer compensated services (such as tutoring) can often find what they need--for free--at the library.
The dawn of the co-working space might be changing this for people who can afford to rent space in a co-working facility that will supply desk space, internet, and even a mailing address. But for fledging entrepreneurs on a budget, the free resources and information provided by libraries can be essential.
And why doesn't such use of library resources for a business/personal gain risk tripping the bar on "inurements"?
Because the resource is available to the community equally, per library policy. In the member's scenario, the library is providing first-come, first-served space suitable for, among other things: group work, a political discussion, or tutoring (with or without compensation). The library is providing a place for people to sit and talk, so long as they arrive in time to gain access to a finite resource.
Once people are availing themselves of library services, a library can't set further rules about the relationship between the parties; so long as their interaction remains within library policy (not disruptive, not in excess of established time limits, etc.). In other words, the relationship between the parties, or an activity that fits within authorized use, can't change the otherwise compliant use of the library space.
Where the member's scenario could get out of hand would be if:
In each of the above examples, the service is exceeding the use generally available to any person using the library. This is where the "inurement" can begin, and the use of public library resources for unambiguously private gain would begin. But so long as no one is claiming or actually using the resource in excess of what is generally allowed, there is no issue.
The Second Question
Now that we've reviewed that "what applies to one must apply to all," we can turn to the other question: how can a library designate space used per policy and by reservation as "private," to avoid meeting crashers?[3]
Below this answer is listed a myriad of resources from the ALA[4] on this topic. I urge readers to review these, as each one sets out important considerations on the use of library space. But for now, we're dealing with this single, incremental question in the State of New York.
Once a library policy sets the terms of community access to private meeting space, here is language for signage at the entrance to the meeting space:
When reserved, this space is for designated users only. To reserve this space, or to obtain a copy of the rules and contract for reservation, please visit [INSERT] or [INSERT].
A library can make this posted language as friendly ("This room is only for reserved events, and is private when in use. Visit our circulation desk for more information!) or imposing ("Reserved, please do not enter without permission.") as it likes. The important thing is that the rules and terms of use are consistent with the law,[5] clearly established by a board-approved policy, and uniformly applied.
And there we go!
Thanks to both members for their insightful questions.
Additional Resources
For those of you who wanting more at the intersection of law, libraries, and meeting rooms, paralegal Klara in the LOSA[6] assembled this list of resources from ALA:
1. Meeting Rooms: An Interpretation of the Library Bill of Rights
- overview on library meeting rooms, suggestions for policies
- includes standard definitions for terms included in policies
- lists what meeting room policies should cover
3. Guidelines for the Development of Policies and Procedures Regarding User Behavior and Library Usage
4. The Library's Legal Answers for Meeting Rooms and Displays
- an ALA eBook by Mary Minow, Tomas Lipinski, Gretchen McCord
- limited public forum vs. designated public forum vs. nonpublic forum
- lists legal cases relevant to library meeting rooms and exhibit spaces
5. OIF Blog - Library Meeting Rooms for All, by James LaRue (former director of the ALA Office for Intellectual Freedom)
[1] The answer to the Spider-Man part of this is of course obvious: because it’s a witty convergence of web-slingers. Of course, as a Gen X nerd (b. 1973), I was a target demographic. Well played, Marvel.
[2]Such a policy would be far too overbroad. If a paid babysitter takes the kids to the library regularly, would that be a violation? If an accountant uses a library computer to check the tax code, would that be a violation? If a professional writer uses the reading room every day to write/think/draft, would that be a violation? That said, a policy against the sale or distribution of material items makes sense.
[3] Including those identifying as "First Amendment auditors"...a term I am loath to use. I am a huge fan of the First Amendment, but those claiming to “audit” for it often demonstrate a less-than-fully developed familiarity with the Constitution. To me, people trying to film in a library while asking questions about budget, etc. are just "people who want to record in the library," and they warrant the same respect, and must follow the same rules, as other people who may want to record in the library.
[4] ALA is the national go-to for information on library matters, and we try not to replicate materials already available. At "Ask the Lawyer" we deal with the legal nitty-gritty in New York, only.
[5] For more on that, see that meeting room RAQ at https://www.wnylrc.org/ask-the-lawyer/raqs/260
[6] "LOSA" = The Law Office of Stephanie Adams, PLLC.
Tags: Meeting Room Policy, Policy, Privacy, Signage, Templates
Kids have been playing in our parking lot and my board is concerned that they will hurt themselves and we will be liable. We have a very vague policy about our parking lot being for patrons to park at only and a couple signs that say patron parking only. We can update our policy to be more specific if need be but their thoughts are no policy on our end will protect us if someone gets hurt and says they didn't know our policy so we need a sign posted that makes it clear we don't expect kids to be riding bikes, go carts, etc in our parking lot.
Our treasurer thought maybe just a "no trespassing" sign would work.
Another Library Director I know said they have a sign that reads:
"Please No...
Bicycling
Loitering
Roller Blading
Skate Boarding
On Library Property"
Would something more specific like that be a benefit or would it be worse because if they hurt themselves doing an activity other than those listed they can say they were in their right?
The kids are often waiting until the library is closed and I'm no longer there before they start riding around on it so simply being vigilant telling them to leave is not going to work.
Thanks so much for any guidance you can offer.
Behold, the humble skateboarder: wheels spinning, scabby knees, and (if they have gotten over the fact that even when worn by Tony Hawk, it looks dorky) brain carefully protected by helmet, ready for action. Never has a humble sport posed more of a challenge to local governments, park designers, architects, and urban planners; lay down a relatively smooth surface, and there they are, ready to challenge both gravity and the rules governing property.
As a lawyer who studies[1] how the law impacts what people do--and how we do it--I find skateboarding fascinating.[2] Since at least the late 80's,[3] in town meeting after town meeting, legal case after legal case,[4] site design after site design, public authorities and property owners have attempted to control when and where people can skate (and bike, and rollerblade, and hang out while watching others do those things).
That we as a society often fail at such prohibitions and dissuasions is shown by the magnitude of letters-to-the-editor and news reporting regarding parking lot/ramp/sidewalk incident and injury.[5] It has also spawned an array of dangerous and off-putting site design, such as metal rivets on walkways and spikes on hardscaping.[6]
Of course, this question is not about skateboards, but rather, about signage effective enough to reduce risky activity and to avoid liability while keeping library premises welcoming to everybody.[7]
For any library, museum, or other public cultural institution wrestling with this issue, this poses a conundrum. The mission of your institution is to be accessible, inclusive, and to serve your community. Yet at the same time, the promotion of a safe parking lot and grounds during open hours is critical...while after-hours promotion of safety is just as important (especially if you offer 24-hour Wi-Fi that is accessible in the parking lot and grounds).
How can an institution achieve this balance?
For an institution confronted by this issue, there is a five-step process that must be conducted:
STEP ONE: Confirm who legally owns and/or controls the parking lot and grounds.[8] Does your library own the lot, or is it rented and subject to the terms of a lease? What you learn during this step will show who has to solve this issue (with a landlord, collaboration will be required).
STEP TWO: What insurance covers the lot, and what types of incidents are covered? This step will provide insight into how your institution is set up to manage the risks you've identified.
STEP THREE: What is the purpose of the parking lot and grounds? What functions do those resources serve? Hopefully, the uses are already limited to only things that serve the mission and plan of service of the library. However, in the case of a lease or shared premises, that might not be the case.
STEP FOUR: Confirm and harmonize everything from the first three steps.
This fourth step sounds simple, but it can take many forms.
For instance:
NOTE: For these reasons (and more), whenever, possible, "Step Four" should be done with a lawyer.
STEP FIVE: Only after completing Steps "One" through "FOUR" should a library board approve a signage plan.
Why these steps? Because the details they draw out will help your library determine the final text of the signage, whittling it down from many permutations. For instance:
In addition to helping your library check all the boxes (ownership, risk management, mission, messaging), I advise this approach because it will position your library to give your signage some personality...something that projects the library’s values and mission out into the community.
For instance, there is nothing wrong, after your property/purpose/insurance analysis, with posting a friendly sign like this:
"Our parking lot is for the safety and convenience of
our Library's diverse and wonderful community.
Please limit your use of our lot to parking your bike or car
while using the services of the library."
Or, if the "personality" of your library is a bit less celebratory, and there has been collaboration with local law enforcement on the issue, and it has been determined that it is safest to employ some forceful messaging, the signage can say:
"Parking lot use limited to parking for
library patrons, employees, and vendors.
POLICE ENFORCED."[11]
Which brings me to the member's actual question:
"Would something more specific like [listing barred activities] be a benefit or would it be worse because if they hurt themselves doing an activity other than those listed they can say they were in their right?"
As you can see, I do not recommend barring a list of activities--partly for the reason in the question, but more fundamentally, because a list of “forbidden” activities only invites quibbling during enforcement (see footnote 9), which creates a needless headache.
In my experience, those who actually have to enforce a policy (a director, a security officer, a police officer, a municipal employee), should be meaningfully consulted during its development, and are better served by a final product that positions them to quote a broad definition of purpose, together with a bar on unrelated activity, such as:
"This parking lot is for parking only.
No recreational use allowed at any time."
And finally, let's talk about that all-important STEP SIX: Dealing with the Human Factor.
We all know this: an institution can install signage six feet high, in flaming letters, and if someone wants to trespass on it after hours, that signage will not stop them.
If that is true, what is the purpose of the signage?
The purpose of the signage is 1) to promote safety; 2) to reinforce mission; and 3) to be able to show that, if injury occurs, the library in no way encouraged, condoned, or sanctioned the activity that caused it (and in fact, forbid it).
Now, while that is important, there is one other thing I must get out there while we're talking about limiting premises liability: just as critical as clear, enforceable signage is ensuring that the library is not maintaining a hazardous condition.
Why? If the injury a trespasser experiences on property is related to a known defective condition (a pothole, for instance, or a heaved sidewalk) the owner/controller of the parking lot could still face liability. To truly promote safety and guard against liability, an owner who invites the public onto their land must be able to show it was not "on notice" about the defect, or that if it was, it had taken adequate steps to protect the public from the hazard (surrounding the pothole by cones, or getting it temporarily filled with cold patch, for instance).
This is why a vigorous facility maintenance plan and deferred maintenance/contingency repair budget is just as--if not more--critical as proper parking lot signage.
In closing, I have to say: writing effective property signage is a tricky thing.[12] Since there is no perfect way to do it, I advise aiming for something that clearly limits the use of the restricted property to its core function (in this case, parking), while also reinforcing the identity of the library as a community resource. Here is a model to consider (after your library follows all the steps):
"To promote a safe and welcoming environment,
this parking lot is for parking and library-approved events only.
All other uses must be approved in writing by the library.
To inquire about using our lot for a community event, call ###-###-####."
...with shorter, smaller, punchier signs at key areas to reinforce the core message:
"No playing in our parking lot at any time.
Safety first!"
I wish all libraries reading this a reduced-risk, injury-free parking lot.
[1] In the field.
[2] I had a board in the 80's, but I only ever attained the level of skill shown in Tom Petty's "Free Fallin'" video (which is to say: not very much).
[3] And maybe earlier?
[4] I like this one: People v Smith, 160 Misc 2d 1070 [Just Ct 1993]
[5] I am not going to cite a study here. Rather, I will cite NY Insurance regulation 11 NYCRR 27.3, which includes in a list of specially elevated risks: "Asbestos, Fungi and Water Damage Remediation ... Amusement Parks and Carnivals Property...Amusement Rides and Devices ...including bumper cars, go-carts and go-cart tracks, giant slides, skateboard tracks, roller-blade tracks...."
When you want to know if something is statistically risky, ask an insurance carrier.
[6] These measures are also used to "dissuade" people from sleeping and getting comfortable in public spaces, an overlap worth contemplating.
[7] A skateboarder or roller-blader on a sidewalk or in a parking lot can pose a risk to a person walking with a small child or stroller, using a walker or wheelchair, or walking an animal.
[8] Although the question was confined to the "parking lot" I am adding "and grounds" since this issue doesn't just involve parking lot concerns.
[9] BMX bikes, skateboards, and roller-blades take the brunt of this type of issue, but frankly, does your director want to quibble over policy when a group of rogue folk-dancers hosts an event in the parking lot after-hours?
[10] I like this last bullet because it reserves the right of a library to host a planned recreational event, but to otherwise bar them on the property. Further, by avoiding the term "loitering," it reduces the risk of confusion for those who need to park or sit on the grounds after-hours to use a library's 24/7 free Wi-Fi.
[11] If you go with this one, confirm with your local PD that they will do this in a way that is consistent with the mission and role of the library. NOTE: I appreciate that in some places, this will not be viewed as a viable option. The mission of your library should be the guiding factor in deciding whether or not to involve law enforcement or private security in this type of policy.
[12] Whenever possible, it is good to use a licensed architect or credentialed municipal planner to design signage; they will pay attention to things like reflectivity, placement, font choice, and ADA accessibility.
Tags: Property, Public Libraries, Safety, Signage
Some of my member libraries have questions about the new Gender Neutral Bathroom Legislation:
1) Type of signage required to be placed on or near the bathroom door. That is, does the sign have to specify "gender neutral", or, is "bathroom" ok. Also, can one use a sign that uses symbols (male, female, ADA) rather than sex?
2) Is a library required to have at least one designated male and one designated female bathroom in the building in addition to a gender neutral one? One of my libraries was with 3 bathrooms was told that was the case.
3) Is there a height requirement for braille signs so that individuals who use wheelchairs can reach it?
[This is the part of the legislation that is generating questions: "Such gender neutral bathroom facilities shall be clearly designated by the posting of such on or near the entry door of each facility."]
It will be good to have clarification/interpretation; it sounds like it has to be clearly stated as gender neutral, which likely can be done with signs with the symbols, but you never know.
Thank you in advance for providing clarification on this legislation.
Above all, "Ask the Lawyer" strives to provide useful, plain-language legal information and analysis for the members of New York's regional library councils.
So before I delve into the background, legal analysis, and compliance tips I would like to offer in response to these questions, here are some useful, plain-language answers:
And with that said...let's delve.
Background
First, let's check in with the legislation[1] the member references, which was signed into law in December 2020, and went into effect in March 2021.
Called "AN ACT to amend the civil rights law and the education law, in relation to single-occupancy bathroom facilities," this legislation affects not only bathrooms in public spaces (like bars, restaurants, etc.), but also bathrooms in SUNY, CUNY, and all community colleges.[2]
While the title and the text of the new laws may sound a tad dry, the "legislative memo" that accompanied it left no room for doubt as to the law-makers' aspirations:
Access to public spaces should not be a privilege. A person's sexual orientation and gender identity are not justifications to exclude individuals from public spaces, including bathrooms. The argument that transgender individuals must use the restroom that corresponds with their assigned gender at birth is discriminatory and wrong. New York State has been a safe haven for people from all backgrounds and beliefs, and we must recognize our role as a leader in the fight for transgender rights. Expanding the civil liberties of transgender individuals is a task New York must take up with pride. We must acknowledge that this issue is not about bathrooms, but is instead about fighting for a person's right to exist in the world free from harassment and discrimination. The California legislature recently passed the most progressive bill on bathroom access in the nation. Now is an opportunity for New York to join California in its efforts to protect transgender individuals and expand inclusivity and dignity for all. Modeled after
California's bill, this act would require all publicly accessible bathrooms, including those in public and private schools, restaurants, bars, mercantile establishments, factories or state-owned or operated buildings, to designate all single occupancy bathrooms as gender neutral.
The memo makes it crystal clear: the intent of the act is to protect civil rights.
This background is important to consider, because as we analyze how to comply with the new laws, the lawmakers' intent--sometimes called the "spirit" of the law--is relevant.
Legal Analysis
Any institution that must comply with the Americans with Disabilities Act ("ADA")[3] should use the United States Department of Justice (USDOJ)'s standards for accessible design, including when creating the now-required postings to designate gender-neutral[4] bathrooms.
The USDOJ's ADA standards are silent about gender-neutral space. However, they do set parameters for signage, including, as the member writes, use and placement of Braille and signs with "tactile" (can be discerned through touch) elements.
Among what is required (sorry if this language is opaque, I don't write the guidance, I just quote it):
Tactile text descriptors are required for pictograms that are provided to label or identify a permanent room or space. Pictograms that provide information about a room or space, such as "no smoking," occupant logos, and the International Symbol of Accessibility, are not required to have text descriptors.
And
703.4.2 Location. Where a tactile sign is provided at a door, the sign shall be located alongside the door at the latch side. Where a tactile sign is provided at double doors with one active leaf, the sign shall be located on the inactive leaf. Where a tactile sign is provided at double doors with two active leafs, the sign shall be located to the right of the right hand door. Where there is no wall space at the latch side of a single door or at the right side of double doors, signs shall be located on the nearest adjacent wall. Signs containing tactile characters shall be located so that a clear floor space of 18 inches (455 mm) minimum by 18 inches (455 mm) minimum, centered on the tactile characters, is provided beyond the arc of any door swing between the closed position and 45 degree open position.
And
703.4.1 Height Above Finish Floor or Ground. Tactile characters on signs shall be located 48 inches (1220 mm) minimum above the finish floor or ground surface, measured from the baseline of the lowest tactile character and 60 inches (1525 mm) maximum above the finish floor or ground surface, measured from the baseline of the highest tactile character.
Meanwhile, in the State of New York, the State Building Code Section E 107.3 reinforces these signage requirements.
What does all this mean? Ideally, the posted signage designating a gender-neutral, single-occupancy or family assist restroom should have either a pictogram with a tactile element on it, or Braille text descriptors describing the room, and with regard to placement, that sign's center should be no less than four feet and no more than five feet above the floor.
Now, let's talk about symbols (as opposed to words).
What if your library wants to use a symbol (or "pictogram") instead of the phrase "gender-neutral"? This is a tough one. If you still have those USDOJ ADA standards open, take a look at how they refer to use of symbols.
First, you'll see that there is a "universal" symbol, set by the International Organization for Standardization (the "ISO"[5]) for designating a bathroom that meets the standards for wheelchair access:[6]
Use of this "universal" symbol is described in both the USDOJ ADA guidelines, and the NY State Building Code.
Next, you'll see that the ISO does have a symbol they have developed to designate that a bathroom is "unisex":
Now, this is just me saying this, so take it with a grain of "persnickety lawyer" salt, but "unisex" is not the same as "gender neutral." Further, a symbol combining the binary designations for "female" and "male" is not quite consistent with an initiative seeking to respect the innate dignity of people who might not identify with either category.[7]
So, until the ISO develops a symbol for "gender-neutral" that doesn't rely on a binary construct of gender, I advise considering not using a symbol at all (for the "gender-neutral") part. Give the ISO time to craft a more appropriate pictogram.
That said, if you are a library lucky enough to have a bidet in your single-occupancy, gender-neutral, family-assist bathroom, the ISO might still have an option for the "bidet" part:[8]
--Just make sure that as required, the pictogram has a tactile element.
Compliance tips
With the legislative record clearly establishing that this change to the law is about civil rights, and with libraries eager to emphasize their missions of access and inclusivity, the signage for a library's gender-neutral bathroom is a good one to demonstrably get right.
However, as you can see from the "Legal Analysis" above, "getting it right" can be complex.
As just a final example of that complexity (and to delve a bit more into one of the member's questions) here is a section of the New York State Building Code's Section 2902, on the prescribed ratio of plumbing facilities for libraries (including total amount of lavatories, amount for men, and amount for women[9]):
What is the take-away from this chart? If your library is struggling with how to designate, plan, or build the right number and/or type of bathrooms, don't be surprised: this stuff is not simple, and it takes consideration of old/new construction, your status as a tenant or building owner, local law, and a host of other factors. Which is why (in addition to your lawyer), a local architect, or a planner with experience on civic and public assembly spaces, is a good person to reach out to.
Architects and planners are the people who live and breathe place-making and ordinal signage. By design, these are professions that think about how people organize buildings, and how people can feel welcome in spaces. An architect or planner with experience in your area will know exactly how to not only designate the space, but to order the signage, and assess the required number of facilities. Since there is no "one size fits all" answer to some of these issues, a library needs to consider a custom fit.
If you aren't sure where to start on a quest for an architect or planner, a call to your local "Permits" officer might yield a name or two, and if there is a local college, their librarian might be able to connect you to the "head of planning."
Conclusion
I have included a lot of analysis in this answer, because in my experience an audience of information management professionals can handle it.
That said, after all the above analysis and commentary, the answers regarding a gender-neutral, single occupancy/family assist bathroom are simple:
Thank you so much for a thoughtful array of questions, I was very grateful to be able to spend some time delving into this topic.
[2] If you're thinking "Hey, they left out public schools!", the law impacting those was passed earlier.
[3] See https://www.wnylrc.org/ask-the-lawyer/raqs/65 for comments on when a library, museum or other institution must comply with the ADA.
[4] Confession: it is driving me CRAZY that this legislation did not include a hyphen between "gender" and "neutral." I refuse to continue the mistake and will use a hyphen unless I am directly quoting the law; to do otherwise would be to be "grammar-neutral" (not to be mistaken for a "grammar neutral" which is someone who mediates grammar disputes).
[5] An organization that is "famous" in the same way the G8 or the IMF is "famous": generally known, and pervasively powerful...but not many people can succinctly define what you do on a daily basis.
[6] Find more guidance on standards for using this symbol at ISO here: https://www.iso.org/obp/ui/#iso:grs:7001:PI_PF_006; the general search tool for international symbols is: https://www.iso.org/obp/ui/#home
[7] Get it together, ISO!
[9] Section 2902 also states that any single-occupancy bathroom may be deducted proportionately from gender ratios. It's almost like they knew what was coming!
Tags: Accessibility, , Library Buildings, Building Codes, Gender Neutral Signage, Signage
