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# 80

III-1.7000 May 26, 1993

The Honorable Don Young
U. S. House of Representatives
2331 Rayburn Building
Washington, D.C. 20515

Dear Congressman Young:

This is in response to your recent letter on behalf of your
constituent, XXXXXXXXXXXX, who suggests that the Americans with
Disabilities Act of 1990 (ADA) should be amended to consider the
needs of each business in determining what demands businesses,
especially small businesses, should be required to meet in order
to comply with the law.

The ADA provides civil rights protections to individuals
with disabilities, and includes requirements applicable to both
State and local governmental entities under title II of the ADA,
and to private businesses under title III of the ADA. The ADA
also authorizes the Department of Justice to provide technical
assistance to individuals and entities with rights or obligations
under the Act. This letter provides informal guidance to assist
your constituent in understanding the ADA's requirements.
However, it does not constitute a legal interpretation and is not
binding on the Department.

Title II of the ADA prohibits discrimination against
qualified individuals with disabilities in all programs,
activities, and services conducted by or on behalf of State and
local governments, as explained in section 35.149 of the title II
regulation (copy enclosed). The concept of program accessibility
is discussed in section II-5.000 of the enclosed title II
Technical Assistance Manual.
Title III of the ADA prohibits discrimination on the basis
of disability by private entities that own, lease, lease to, or
operate places of public accommodation (such as restaurants,
hotels, retail stores, or private schools) and establishes
requirements for the new construction and alteration of places of
public accommodation and commercial facilities (such as factories
and warehouses). Copies of the title III regulation and
Technical Assistance Manual are also enclosed.

As your constituent urges, it is important that a law such
as the ADA recognize that the ability of a business to make
changes is affected by a number of factors, and, in particular,
by the resources available to that business. The ADA was drafted
with that point in mind and reflects throughout a careful balance
between the rights of individuals with disabilities and the
legitimate concerns of affected businesses. For example, in
existing facilities that are not otherwise being altered, the ADA
only requires businesses to remove architectural barriers when
such barrier removal is "readily achievable", that is, "easily
accomplishable and able to be carried out without much difficulty
or expense." In determining whether something is readily
achievable, the regulation explicitly permits a business to
consider a number of factors, including the cost of the proposed
action and the resources available to the business, either
directly, or through a parent corporation. See section 36.104 of
the title III regulation.

Similarly, section 35.150(a)(3) of the title II regulation
provides that a State or local government is not required to take
any action that it can demonstrate would result in undue
financial and administrative burdens. Other limitations on the
obligations of covered entities occur throughout the ADA. The
two enclosed Technical Assistance Manuals should assist Mr. XXXX
in determining more accurately the extent of his obligations
under the ADA.

Although the Department of Justice is not able to issue
determinations regarding the obligations of specific parties
under the ADA, you may wish to suggest to your constituent that
he further explore with his tenant, the Alaska Department of Fish
and Game, the exact nature of the changes that should be made in
the Galena facility. The ADA does not require that existing
facilities be brought up to the standards for new construction.
As pointed out above, State and local governments are required to
ensure "program access", that is, to make certain that the
programs and activities of the entity, when viewed in their
entirety, are available to citizens with disabilities. As
discussed in the title II Technical Assistance Manual, it may be
possible to achieve program access by methods other than physical
alterations. For example, a government service that is provided
in an inaccessible second floor location could be moved to the
first floor when service is required by an individual who is
unable to climb steps.

Also, while a precise determination of the responsibilities
of the parties in this particular situation would require an
analysis of the lease, in general, a title III (private) landlord
does not take on the obligations of a title II (government)
tenant merely by leasing space to that tenant. For example, if a
private landlord is leasing an existing office building that does
not contain any places of public accommodation (that is, a
building that is purely a commercial facility) to a governmental
entity, the landlord's only ADA obligations with respect to that
building arise when the landlord makes alterations to the
building. When such alterations are made, the ADA requires that
the landlord follow the accessibility standards that are included
as Appendix A to the title III regulation. The government
tenant's obligations arise independently under title II. Again,
the lease itself may impose additional obligations on the
landlord, but these obligations are not affected by the ADA.

I hope this information will be useful to you in responding
to your constituent.


James P. Turner
Acting Assistant Attorney General
Civil Rights Division

Enclosures (4)