# 55 DJ 202-80-0 II-3.

3000 February 1, 1993

The Honorable Charles S. Robb United States Senator 1001 East Broad Street Richmond, Virginia 23219 Dear Senator Robb: This responds to your inquiry on behalf of your constituent, XXXXXXXXXXXXX, concerning a Virginia statute that authorizes issuance of a special hunting permit that allows individuals with disabilities to shoot game animals from a stationary vehicle. Eligibility for the special permit is limited to individuals who are permanently unable to walk. Mr. XXXXXXXX asked whether, under the Americans with Disabilities Act (ADA), eligibility for the special permit would be extended to all individuals with mobility impairments. The ADA authorizes the Department to provide technical assistance to entities that are subject to the Act. This letter provides informal guidance to assist you in understanding how the ADA may apply to the question raised by your constituent. This technical assistance, however, does not constitute a determination by the Department of Justice of your constituent's rights or responsibilities under the ADA and does not constitute a binding determination by the Department of Justice. The Department's regulation implementing title II of the ADA, which applies to all programs, services, and activities of State and local governments, prohibits a public entity from discriminating against qualified individuals with disabilities in the benefits and services that it provides. 28 C.F.R. pt. 35. Section 35.130(c) of the regulation, however, permits a public entity to offer benefits to individuals with disabilities, or a particular class of individuals with disabilities, that it does not offer to individuals without disabilities. The purpose of

this provision is to allow State and local governments to provide special benefits, beyond those required by the ADA, that are limited to individuals with disabilities or a particular class of individuals with disabilities, without thereby incurring additional obligations to persons without disabilities or to other classes of individuals with disabilities. Where a benefit is limited to individuals with disabilities or a particular class of individuals with disabilities, discrimination is determined by comparing the treatment of an individual with a disability to the treatment provided to similarly situated individuals without disabilities. Because individuals without disabilities are not eligible for the special permit, denial of that permit to individuals with disabilities who are not permanently unable to walk does not constitute discrimination prohibited by title II. The State is free to limit eligibility for the special permit to the particular class of individuals with disabilities who are permanently unable to walk, because the limitation does not deny a benefit to individuals with disabilities that is provided to similarly situated individuals without disabilities. I hope this information is helpful to you in responding to Mr. XXXXXXXX. Sincerely,

James P. Turner Acting Assistant Attorney General Civil Rights Division