# 25 III-5.4000 III-4.

4400 July 28, 1992 DJ 202-PL-00050

Kevin W. Betz, Esq. Krieg, Devault, Alexander, & Capehart One Indiana Square Suite 2800 Indianapolis, Indiana 46204-2017 Dear Mr. Betz: I am responding to your letter asking for clarification of the requirements of title III of the Americans with Disabilities Act of 1990 (ADA), Pub. L. 101-336, 104 Stat. 327 (July 26, 1990), 42 U.S.C.A. {{ 12101 et seq., and this Department's regulation implementing title III, 56 Fed. Reg. 35544, to be codified at 28 C.F.R. pt. 36. The ADA authorizes the Department to provide technical assistance to individuals and entities that have rights or responsibilities under the Act. This letter provides informal guidance to assist you in understanding the ADA and the Department's regulation. However, this technical assistance does not constitute a determination by the Department of Justice of your clients' rights or responsibilities under the ADA, and it is not binding on the Department of Justice. You have asked whether a retail business that operates twostory facilities in which all customer service activity is carried out on the first floor is required to provide elevator access to the employee areas on the second floor in either its existing facilities or in the facilities that it is planning to construct. In new construction and alterations, title III generally requires that at least one accessible passenger elevator serve each level of a multistory building. However, there is an exception to this general rule. Elevators are not required in facilities that are less than three stories or have fewer than 3000 square feet per story, unless the building is a shopping

center or mall; the professional office of a health care provider; a public transit station; or an airport passenger terminal. Therefore, a newly constructed or altered two-story retail facility would only be required to provide elevator access to the second floor if the store is part of a shopping center or mall, as defined in section 36.401(d)(1)(ii) or section 36.404(a)(2) of the title III rule. If a building does not qualify for the elevator exemption, all floors must be served by elevators, even if the floors are used only by employees. Although areas used only as work areas need not be designed to permit maneuvering within the areas, an accessible approach and entrance to the areas must be provided. In existing facilities that are not otherwise being altered, a public accommodation is required to remove architectural barriers to the extent that it is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense. The requirements for barrier removal are not to be interpreted to exceed the title III rule's alteration standards. In other words, if an existing building would be eligible for the elevator exemption if it were undergoing alterations, it would never be necessary to install an elevator for purposes of barrier removal. In addition, in most cases installation of an elevator would not be considered "readily achievable" because of the expense. For your information, I am enclosing a copy of this Department's regulation implementing title III of the ADA and the technical assistance manual that we developed to assist individuals and entities subject to the ADA to understand the requirements of title III. I hope that this information is helpful to you. Sincerely,

John L. Wodatch Director Office on the Americans with Disabilities Act Enclosures