# 124 204-012-00045 II-3.6000 II-3.10000 II-5.

2000

February 17, 1994

Mr. Paul J. Kelley, Director Political Reference Service Post Office Box 2662 Phoenix, Arizona 85002 Dear Mr. Kelley: This is in response to your letters of August 10 and September 22, 1993, requesting an opinion as to whether the trash collection policies of an unnamed city violate title II of the Americans with Disabilities Act of 1990 (ADA). While we appreciate your patience in waiting for a letter responding to the specific circumstances outlined in your letters and your recognition that we are faced with a challenging number of individual inquiries, we nevertheless apologize for any inconvenience caused by our delay in responding. Shortly after the ADA was enacted, the Department of Justice established a technical assistance program to aid the public in obtaining information about the Act. In addition to providing printed information about the ADA, as part of its technical assistance efforts, the Department operates both a telephone information line and a computer bulletin board. The numbers for the ADA information line are (202) 514-0301 (Voice) and (202) 514-0383 (TDD) (available 1:00 p.m. through 5:00 p.m., Monday through Friday) and the number for the computer bulletin board is (202) 514-6193. In the future, when you need an immediate answer to an inquiry, you may wish to contact the Department through these services. Copies of our Technical Assistance Manuals, which address many basic issues under titles II and III of the ADA, are enclosed for your convenience. The ADA 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 you in understanding the ADA's requirements.

It does not, however, constitute a legal interpretation or a legal opinion and is not binding on the Department. Title II of the ADA prohibits discrimination against qualified individuals with disabilities on the basis of disability in all programs, activities, and services provided by or on behalf of State and local governments. Section 35.149 of the title II regulation (copy enclosed) prohibits a public entity from denying the benefits of such programs, activities, and services from qualified individuals with disabilities because the entity's facilities are inaccessible to or unusable by individuals with disabilities. A public entity is required to provide "program access", that is, the entity is required to operate each service, program, or activity it provides so that, when viewed in its entirety, the service, program, or activity is readily accessible to and usable by individuals with disabilities. See section 35.150 of the title II regulation. The program access requirement is also discussed in section II-5.000 of the title II Technical Assistance Manual. Providing program access does not necessarily require a public entity to make each of its facilities fully accessible. For example, program access can be achieved by the relocation of services from inaccessible to accessible buildings or by the assignment of aids to program beneficiaries. A public entity is not required to take any action that it can demonstrate would result in a fundamental alteration in the nature of its services, programs, or activities or in undue financial and administrative burdens. See section 35.150(a)(3) of the title II regulation. With respect to the situation you describe, if a public entity has responsibility for, or authority over, sidewalks or other public walkways, it must ensure that such sidewalks and walkways meet the program access requirement and, when viewed in their entirety, are readily accessible to and usable by individuals with disabilities. (Please note that special rules apply to the installation of curb ramps. See section 35.150(c)(2).) To meet the program access requirement, a public entity may be required to remove dumpsters, trash, or other objects blocking the passage of persons using wheelchairs or other devices to assist mobility. The entity would almost certainly be precluded from deliberately blocking sidewalks by its choice of trash collection procedures.

In the hypothetical situation you present in your letter, because the city historically has been able to collect trash in a manner that does not disrupt the passage of persons with mobility impairments, it would seem that the city should be able to modify its current trash collection procedures to restore access to its sidewalks, without fundamentally altering the nature of its trash collection services or incurring undue financial and administrative burdens. At least two other sections of the title II regulation may be applicable, and lead to the same result with respect to situations where a public entity has responsibility for, or authority over, sidewalks or other public walkways that are required under the Act to be readily accessible to and usable by persons with disabilities. For example, section 35.133 of the title II regulation requires a public entity to maintain such facilities in operable working condition. The only exception to this requirement permits isolated or temporary interruptions in operation when required for maintenance or repairs. See section 35.133(b). The situation you describe, where sidewalks are periodically blocked, is not the type of situation contemplated by this exception. The title II regulation also requires a public entity to make reasonable modifications in its policies, practices, or procedures when "... necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." See section 35.130(b)(7) of the title II rule. Under this provision, title II would require the city in your hypothetical example to modify its trash collection procedures to ensure that, aside from temporary and unavoidable situations, public sidewalks are not blocked by dumpsters, trash, or other impediments to travel by wheelchair. As noted above, in light of its past trash collection procedures, it is unlikely that the city will be able to demonstrate that such a modification would result in a fundamental alteration in the nature of its trash collection services. I hope this information will be useful to you. Sincerely,

Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division Enclosures (3)