# 59 II-1.3000 II-5.2000 Feb.

17, 1993

The Honorable Tom Harkin Chairman Subcommittee on Disability Policy Committee on Labor and Human Resources United States Senate Washington, D. C. 20510-6300 Dear Senator Harkin: This letter responds to your inquiry on behalf of the City of Waverly, Iowa. The City Administrator has requested clarification regarding the City's responsibilities under the Americans with Disabilities Act (ADA). The ADA authorizes the Department of Justice to provide technical assistance to entities that are subject to the Act. This letter provides informal guidance to assist you in responding to the City. However, this technical assistance does not constitute a determination by the Department of Justice of the City's rights or responsibilities under the ADA and does not constitute a binding determination by the Department of Justice. The City Administrator has raised a number of questions regarding the use of the basement of the Bremer County-Waverly Law Enforcement Center. Under title II of the ADA, a State or local governmental entity must operate its programs and activities so that, when viewed in their entirety, such programs and activities are readily accessible to and usable by individuals with disabilities. The concept of "program access" is discussed in sections 35.149 and 35.150 of this Department's title II regulation, 28 C.F.R. Part 35, and on pages 19-22 of the title II Technical Assistance Manual (copies enclosed). As stated in section 35.150(a)(3) of the title II regulation, a title II entity is not required to take any actions that it can

demonstrate would result in a fundamental alteration of its services, programs, or activities, or in undue financial and administrative burdens. As a general matter, it is preferable to locate offices serving the public, such as a driver's licensing facility, in an accessible location. Where, as appears to be the case in this instance, accessible space is not available to permanently relocate such a service or where relocation would pose undue financial and administration burdens, individuals who are unable to climb stairs may be served in an alternative accessible location. However, care should be taken to ensure that an equivalent level of service is provided. Although it may be acceptable to relocate a service such as driver's licensing when a permanent accessible location is not available, under the concept of "program access," public meetings, such as meetings by public boards or public hearings, should not be scheduled in inaccessible locations when, as appears to be true in this situation, accessible locations are available. A public entity may continue to permit private groups to rent or otherwise utilize its space. If it does so, it does not, thereby, become subject to title III (which prohibits discrimination by public accommodations and commercial facilities), even if the private entities are public accommodations subject to title III. It does, however, retain its title II obligations with respect to the space. This issue is further discussed on pages 1 and 2 of the title II Technical Assistance Manual. Use of the basement space for meetings and training of employees of the police and sheriff departments is governed by the employment provisions of title II, which adopt the employment standards promulgated by the Equal Employment Opportunity Commission in its title I regulation. Under title I standards, an employer is not required to make all work areas accessible. Instead the requirement is for "reasonable accommodation" of qualified individuals with disabilities,

which is decided on a case-by-case basis. One example of such a reasonable accommodation could be the relocation of a training class normally conducted in an inaccessible location to an accessible location when an employee with a mobility impairment needs to attend such a class. For further discussion of this and other employment issues, we suggest that you contact the EEOC and request a copy of their title I Technical Assistance Manual. The EEOC can be reached at 1800-663-EEOC (Voice) or 1-800-800-3302 (TDD). The City Administrator has also requested information regarding accessibility standards for public and private buildings. With respect to new construction, privately-owned places of public accommodation and commercial facilities must follow the ADA Accessibility Guidelines (Guidelines), which are located at Appendix A of the enclosed title III rule. Currently, title II entities have the option of following the Uniform Federal Accessibility Standards (UFAS) (copy enclosed) or the Guidelines, except that if the Guidelines are used, a public entity may not take advantage of the elevator exemption (which permits certain buildings under three stories or under 3,000 square feet per floor to be constructed without an elevator). General differences between UFAS and the Guidelines are discussed on pages 23-25 of the title II Technical Assistance Manual. Please note, however, that the Architectural and Transportation Barriers Compliance Board (Board) has issued a proposed regulation that would amend the Guidelines to include standards applicable to a variety of the title II facilities. It is anticipated that the Department of Justice will, after notice and comment, adopt the proposed amendment as the standard for title II entities. At such time title II entities will be required to use the revised guidelines for new construction and alterations, and will no longer have the option of following UFAS. A copy of the proposed Guidelines is enclosed. Any comments on the proposed standards would be welcome and should be sent to the Board at the address set forth in the document. Finally, the City Administrator has requested information regarding the requirements for new sidewalk construction. The current standards do not address this issue. However, the

proposed title II Guidelines would add standards applicable to sidewalks and address issues regarding slope in hilly terrain. Again, we welcome your comments on the proposed new standards. I hope this information is helpful to you in responding to the City's inquiry. Sincerely,

W. Lee Rawls Assistant Attorney General Enclosures (5)